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AMENDED AND RESTATED
TRUST AGREEMENT
between
TEXAS UTILITIES COMPANY, as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
XXXXX XXXXXXXX,
XXXX X. XXXXXX,
XXXXXX XXXXXXXX,
XXXXX XXXXX,
and
XXX XXXXXX, as Trustees
Dated as of December 30, 1998
TXU CAPITAL I
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TXU CAPITAL I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- ---------------
Section 310(a)(1) . . . . . . . . . . . . 8.07
(a)(2) . . . . . . . . . . . . 8.07
(a)(3) . . . . . . . . . . . . 8.09
(a)(4) . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . 8.08
Section 311(a) . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . 8.13
Section 312(a) . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . 5.07
Section 313(a) . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . . 8.14(b)
(b) . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . 8.14(a)
(d) . . . . . . . . . . . . 8.14(a), 8.14(b)
Section 314(a) . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . Not Applicable
(c)(2) . . . . . . . . . . . . Not Applicable
(c)(3) . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . Not Applicable
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) . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . Not Applicable
(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
--------------------
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Trust Agreement.
TABLE OF CONTENTS
ARTICLE I.
Defined Terms
Section 1.01. Definitions . . . . . . . . . . . . . . . 2
ARTICLE II.
Establishment of the Trust
Section 2.01. Name . . . . . . . . . . . . . . . . . . 11
Section 2.02. Office of the Delaware Trustee;
Principal Place of Business . . . . . . . 11
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses . . . . . . . . . 11
Section 2.04. Issuance of the Preferred Trust
Securities . . . . . . . . . . . . . . . 11
Section 2.05. Subscription and Purchase of Debentures;
Issuance of the Common Trust Securities . 12
Section 2.06. Declaration of Trust; Appointment of
Additional Administrative Trustees . . . 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
ARTICLE III.
Payment Account
Section 3.01. Payment Account . . . . . . . . . . . . . 16
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions . . . . . . . . . . . . . . 17
Section 4.02. Redemption . . . . . . . . . . . . . . . 18
Section 4.03. Subordination of Common Trust
Securities . . . . . . . . . . . . . . . 20
Section 4.04. Payment Procedures . . . . . . . . . . . 20
Section 4.05. Tax Returns and Reports . . . . . . . . . 20
Section 4.06. Payments under Indenture . . . . . . . . 21
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership . . . . . . . . . . . . 21
Section 5.02. The Trust Securities Certificates . . . . 21
Section 5.03. Execution and Delivery of Trust
Securities Certificates . . . . . . . . . 22
Section 5.04. Registration of Transfer and Exchange of
Trust Securities Certificates . . . . . . 22
Section 5.05. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates . . . . . . 23
Section 5.06. Persons Deemed Securityholders . . . . . 23
Section 5.07. Access to List of Securityholders' Names
and Addresses . . . . . . . . . . . . . . 23
Section 5.08. Maintenance of Office or Agency . . . . . 24
Section 5.09. Appointment of Paying Agent . . . . . . . 24
Section 5.10. Ownership of Common Trust Securities by
Depositor . . . . . . . . . . . . . . . . 25
Section 5.11. Definitive Preferred Trust Securities
Certificates . . . . . . . . . . . . . . 25
Section 5.12. Book-Entry System . . . . . . . . . . . . 26
Section 5.13. Rights of Securityholders . . . . . . . . 26
Section 5.14. Cancellation by Transfer Agent and
Registrar . . . . . . . . . . . . . . . . 27
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights . . . . . . 27
Section 6.02. Notice of Meetings . . . . . . . . . . . 28
Section 6.03. Meetings of Holders of Preferred Trust
Securities . . . . . . . . . . . . . . . 28
Section 6.04. Voting Rights . . . . . . . . . . . . . . 29
Section 6.05. Proxies, etc. . . . . . . . . . . . . . . 29
Section 6.06. Securityholder Action by Written
Consent . . . . . . . . . . . . . . . . . 29
Section 6.07. Record Date for Voting and Other
Purposes . . . . . . . . . . . . . . . . 29
Section 6.08. Acts of Securityholders . . . . . . . . . 30
Section 6.09. Inspection of Records . . . . . . . . . . 31
ARTICLE VII.
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee . . . . . . . . . . . . 31
Section 7.02. Delaware Trustee . . . . . . . . . . . . 32
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities . . . 32
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 . . . . . . . . . . . . . . 37
Section 8.05. May Hold Securities . . . . . . . . . . . 37
Section 8.06. Compensation; Fees; Indemnity . . . . . . 37
Section 8.07. Certain Trustees Required; Eligibility . 38
Section 8.08. Conflicting Interests . . . . . . . . . . 38
Section 8.09. Co-Trustees and Separate Trustee . . . . 39
Section 8.10. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . 40
Section 8.11. Acceptance of Appointment by Successor . 42
Section 8.12. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . 42
Section 8.13. Preferential Collection of Claims
Against Depositor or Trust . . . . . . . 43
Section 8.14. Reports by Property Trustee . . . . . . . 43
Section 8.15. Reports to the Property Trustee . . . . . 43
Section 8.16. Evidence of Compliance With Conditions
Precedent . . . . . . . . . . . . . . . . 43
Section 8.17. Number of Trustees . . . . . . . . . . . 43
Section 8.18. Delegation of Power . . . . . . . . . . . 44
Section 8.19. Fiduciary Duty . . . . . . . . . . . . . 44
ARTICLE IX.
Termination and Liquidation
Section 9.01. Dissolution Upon Expiration Date . . . . 45
Section 9.02. Early Termination . . . . . . . . . . . . 46
Section 9.03. Termination . . . . . . . . . . . . . . . 46
Section 9.04. Liquidation . . . . . . . . . . . . . . . 46
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and
Assumption of Obligations . . . . . . . . 48
Section 10.02. Limitation of Rights of Securityholders . 48
Section 10.03. Amendment . . . . . . . . . . . . . . . . 49
Section 10.04. Separability . . . . . . . . . . . . . . 50
Section 10.05. Governing Law . . . . . . . . . . . . . . 50
Section 10.06. Successors . . . . . . . . . . . . . . . 50
Section 10.07. Headings . . . . . . . . . . . . . . . . 50
Section 10.08. Notice and Demand . . . . . . . . . . . . 50
Section 10.09. Agreement Not to Petition . . . . . . . . 51
Section 10.10. Conflict with Trust Indenture Act . . . . 51
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
December 30, 1998, between (i) TEXAS UTILITIES COMPANY, a Texas
corporation (the "Depositor"), (ii) The Bank of New York, a
banking corporation duly organized and existing under the laws of
New York, as trustee (the "Property Trustee" and, in its separate
capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) The Bank of New York (Delaware), a banking
corporation duly organized under the laws of Delaware, as
Delaware trustee (the "Delaware Trustee"), (iv) Xxxxx Xxxxxxxx,
Xxxx X. Xxxxxx, Xxxxxx Xxxxxxxx, Xxxxx Xxxxx and Xxx Xxxxxx, each
an individual, and each of whose address is c/o Texas Utilities
Services Inc., 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000 (each, an
"Administrative Trustee" and collectively the "Administrative
Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees are referred to herein each as a
"Trustee" and collectively as the "Trustees") and (v) the several
Holders, as hereinafter defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor, the Property Trustee, the
Delaware Trustee and Xxxxx Xxxxxxxx, as Administrative Trustee,
have heretofore duly declared and established a business trust
pursuant to the Delaware Business Trust Act by the entering into
of that certain Trust Agreement, dated as of December 3, 1998
(the "Original Trust Agreement"), and by the execution by the
Property Trustee, the Delaware Trustee and Xxxxx Xxxxxxxx, as
Administrative Trustee and filing with the Secretary of State of
the State of Delaware of the Certificate of Trust, dated December
3, 1998, a copy of which is attached as Exhibit A; and
WHEREAS, the Trust and the Depositor entered into an
Underwriting Agreement dated December 21, 1998 with Xxxxxx
Xxxxxxx & Co. Incorporated, Credit Suisse First Boston
Corporation, Xxxxxxx, Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, PaineWebber Incorporated and Xxxxxxx Xxxxx
Barney Inc.
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 acquisition by the
Trust from the Depositor of all of the right, title and interest
in the Debentures, (ii) the issuance of the Common Trust
Securities, as hereinafter defined, by the Trust to the
Depositor, and (iii) the issuance of the Preferred Trust
Securities, as hereinafter defined, by the Trust.
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 party and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.01. DEFINITIONS. For all purposes of this
Trust Agreement, except as otherwise expressly provided or unless
the context otherwise requires:
(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 Amount for a given period, the
amount of Additional Interest (as defined in the Subordinated
Indenture) paid by the Debenture Issuer on a Like Amount of
Debentures for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative
Trustees of the Trust and not in their individual capacities, or
such trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Adverse Tax Consequence" means any of the
circumstances described in clauses (i), (ii) and (iii) of the
definition of "Tax Event" herein.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Bank" has the meaning specified in the preamble to
this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(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 any 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 of the
consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking
reorganization or relief under Federal bankruptcy law
or any other applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of 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.
"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 appropriate Trustee.
"Business Day" means a day other than (x) a Saturday or
a Sunday, (y) a day on which banks in New York, New York are
authorized or obligated by law or executive order to remain
closed or (z) a day on which the Property Trustee's Corporate
Trust Office or the Debenture Trustee's principal corporate trust
office is closed for business.
"Certificate of Trust" has the meaning specified in
Section 2.07(d).
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of execution and delivery
of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
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 Trust Security" means a security representing
an undivided beneficial interest in the assets of the Trust
having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive
Distributions, Debentures and a Liquidation Distribution as
provided herein.
"Common Trust Securities Certificate" means a
certificate evidencing ownership of Common Trust Securities,
substantially in the form attached as Exhibit B.
"Corporate Trust Office" means the principal corporate
trust office of the Property Trustee located in New York, New
York which at the date of execution of this Trust Agreement is
located at 000 Xxxxxxx Xxxxxx - 00X, Xxx Xxxx, Xxx Xxxx 00000.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of the Trust or the Trust's Affiliates; and (b) any Holder of
Trust Securities.
"Debenture Event of Default" means an "Event of
Default" as defined in the Subordinated Indenture.
"Debenture Issuer" means Texas Utilities Company, a
Texas corporation, in its capacity as issuer of the Debentures
and its Successors.
"Debenture Redemption Date" means "Redemption Date" as
defined in the Subordinated Indenture with respect to the
Debentures.
"Debenture Trustee" means The Bank of New York, as
trustee under the Subordinated Indenture, and its permitted
successors and assigns as such trustee.
"Debentures" means $237,113,425 aggregate principal
amount of the Debenture Issuer's 7-1/4% Junior Subordinated
Debentures, Series A, issued pursuant to the Subordinated
Indenture which will mature on March 31, 2029.
"Definitive Preferred Trust Securities Certificates"
means Preferred Trust Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11.
"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 banking corporation
identified as the "Delaware Trustee" in the preamble to this
Trust Agreement solely in its capacity as Delaware Trustee of the
Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor trustee appointed as
herein provided.
"Depositor" has the meaning specified in the preamble
to this Trust Agreement and includes Texas Utilities Company in
its capacity as Holder of the Common Trust Securities and its
Successors.
"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.
"Early Termination Event" has the meaning specified in
Section 9.02.
"Event of Default" means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of Default;
or
(ii) default by the Trust in the payment of any
Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days;
or
(iii) default by the Trust in the payment of any
Redemption Price, plus accumulated and unpaid
Distributions, of any Trust Security when it becomes
due and payable; or
(iv) default in the performance, or breach, in any
material respect of any covenant or warranty of the
Trustees in this Trust Agreement (other than a covenant
or warranty a default in whose performance or breach is
specifically dealt with in clause (ii) or (iii), above)
and continuation of such default or breach for a period
of 60 days after there has been given, by registered or
certified mail, to the Trust by the Holders of at least
10% in Liquidation Amount of the Outstanding Preferred
Trust Securities a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default"
hereunder; or
(v) the occurrence of a Bankruptcy Event with
respect to the Trust.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Expense Agreement" means the Agreement as to Expenses
and Liabilities between the Depositor and the Trust,
substantially in the form attached as Exhibit C, as amended from
time to time.
"Expiration Date" shall have the meaning specified in
Section 9.01.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, a New York
banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit
of the Holders of the Preferred Trust Securities, as amended from
time to time.
"Indemnified Person" means any Trustee, any Affiliate
of any Trustee, or any officer, director, shareholder, member,
partners, employee, representative or agent of any Trustee, or
any employee or agent of the Trust or its Affiliates.
"Investment Company Act" means the Investment Company
Act of 1940, as amended.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a
Liquidation Amount equal to the principal amount of Debentures to
be contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities plus accumulated and
unpaid Distributions to the date of such payment and (ii)
Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holders to which such
Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Debentures
are to be distributed to Holders of Trust Securities in
connection with a dissolution and liquidation of the Trust
pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Offer" has the meaning specified in Section 2.07(c).
"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. Any 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, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(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 Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of the
Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel delivered with respect to
compliance with a condition or covenant provided for in this
Trust Agreement shall include statements comparable to the
statements referred to in the definition of "Officers'
Certificate" herein.
"Original Trust Agreement" has the meaning specified in
the recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred
Trust Securities, means, as of the date of determination, all
Preferred Trust Securities theretofore delivered under this Trust
Agreement, except:
(i) Preferred Trust Securities theretofore canceled
by the Transfer Agent and Registrar or delivered to the
Transfer Agent and Registrar for cancellation;
(ii) Preferred Trust Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred Trust
Securities; provided that, if such Preferred Trust
Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Trust
Agreement; and
(iii) Preferred Trust Securities in exchange for or in
lieu of which other Preferred Trust Securities have
been delivered pursuant to this Trust Agreement,
including pursuant to Sections 5.04, 5.05 or 5.11;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred Trust
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred Trust
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Preferred Trust Securities which such Trustee knows to be so
owned shall be so disregarded and (b) the foregoing shall not
apply at any time when all of the Outstanding Preferred Trust
Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Trust Securities
so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustee the pledgee's right so to act with respect
to such Preferred Trust 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 Trust Securities Certificate as reflected in the records of
the Securities Depository or, if a Securities Depository
participant is not the beneficial owner, then as reflected in the
records of a Person maintaining an account with such Securities
Depository (directly or indirectly), in accordance with the rules
of such Securities Depository.
"Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 5.09 and shall initially be
The Bank of New York.
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee with The Bank of New York, or such other banking
institution as the Depositor shall select for the benefit of the
Securityholders in which all amounts paid in respect of the
Debentures will be held and from which the Paying Agent, pursuant
to Section 5.09, shall make payments to the Securityholders in
accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company or
corporation, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Trust Security" means a security
representing an undivided beneficial interest in the assets of
the Trust having a Liquidation Amount of $25 and having rights
provided therefor in this Trust Agreement, including the right to
receive Distributions, Debentures and a Liquidation Distribution
as provided herein and, in certain circumstances, a preference
over the Common Trust Securities.
"Preferred Trust Securities Certificate" means a
certificate evidencing ownership of Preferred Trust Securities,
substantially in the form attached as Exhibit D.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to
this Trust Agreement solely in its capacity as Property Trustee
of the Trust and not in its individual capacity, or its successor
in interest in such capacity, or any successor trustee appointed
as herein provided.
"Redemption Date" means, with respect to any Trust
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any date
fixed for redemption of any Trust Security, the Liquidation
Amount of such Trust Security.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Responsible Officer," when used with respect to the
Property Trustee means an officer of the Property Trustee
assigned by the Property Trustee to administer its corporate
trust matters.
"Securities Depository" shall have the meaning
specified in Section 5.12. The Depository Trust Company will be
the initial Securities Depository.
"Securities Register" shall mean the Securities
Register as described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose
name a Trust Security or Securities is registered in the
Securities Register; any such Person shall be a beneficial owner
of such security within the meaning of the Delaware Business
Trust Act.
"Subordinated Indenture" means the Indenture, dated as
of December 1, 1998, between the Depositor and the Debenture
Trustee, as trustee, as amended or supplemented from time to
time.
"Tax Event" means the receipt by the Trust or the
Depositor of an opinion of counsel experienced in such matters to
the effect that, as a result of (a) any amendment to,
clarification of, or change (including any announced prospective
change) in, the laws or treaties (or any regulations thereunder)
of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, (b) any judicial
decision or any official administrative pronouncement, ruling,
regulatory procedure, notice or announcement (including any
notice or announcement of intent to issue or adopt any such
administrative pronouncement, ruling, regulatory procedure or
regulation) (each, an "Administrative Action"), or (c) any
amendment to, clarification of, or change in the official
position or the interpretation of any such Administrative Action
or judicial decision or any interpretation or pronouncement that
provides for a position with respect to such Administrative
Action or judicial decision that differs from the theretofore
generally accepted position, in each case by any legislative
body, court, governmental authority or regulatory body,
irrespective of the time or manner in which such amendment,
clarification or change is introduced or made known, which
amendment, clarification, or change is effective, which
Administrative Action is taken or which judicial decision is
issued, in each case on or after the date of issuance of the
Preferred Trust Securities, there is more than an insubstantial
risk that (i) the Trust is, or will be, subject to United States
federal income tax with respect to interest received on the
Debentures, (ii) interest payable by the Depositor on the
Debentures is not, or will not be, fully deductible by the
Depositor for United States federal income tax purposes, or (iii)
the Trust is, or will be, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"Transfer Agent and Registrar" shall mean the transfer
agent and registrar for the Preferred Trust Securities appointed
by the Trust and shall be initially Texas Utilities Services Inc.
"Trust" means the Delaware business trust created by
the Original Trust Agreement and the Certificate of Trust and
continued hereby and identified on the cover page to this Trust
Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as amended and in force at the date as of which this
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 Debentures, (ii) any
cash on deposit in, or owing to, the Payment Account and (iii)
all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the
Common Trust Securities Certificates or the Preferred Trust
Securities Certificates.
"Trust Security" means any one of the Common Trust
Securities or the Preferred Trust Securities.
"Underwriting Agreement" means the Underwriting
Agreement, dated as of December 21, 1998, among the Trust, the
Depositor and the underwriters named therein.
ARTICLE II.
ESTABLISHMENT OF THE TRUST
SECTION 2.01. NAME. The Trust continued hereby shall
be known as "TXU Capital 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 xxx and be sued.
SECTION 2.02. OFFICE OF THE DELAWARE TRUSTEE;
PRINCIPAL PLACE OF BUSINESS. The office of the Delaware Trustee
in the State of Delaware is Xxxxx Xxxx Center, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000, or at such other address in Delaware as the
Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of
business of the Trust is c/o Texas Utilities Company, Energy
Plaza, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000.
SECTION 2.03. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with the
Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses
paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
SECTION 2.04. ISSUANCE OF THE PREFERRED TRUST
SECURITIES. On December 21, 1998, an authorized representative
of the Depositor and the Trust both executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, one of the Administrative
Trustees, on behalf of the Trust in accordance with Section 5.02,
executed and delivered Preferred Trust Securities Certificates,
registered in the name of the nominee of The Depository Trust
Company, having an aggregate Liquidation Amount of $230,000,000.
SECTION 2.05. SUBSCRIPTION AND PURCHASE OF DEBENTURES;
ISSUANCE OF THE COMMON TRUST SECURITIES. Contemporaneously with
the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, subscribed to
and purchased from the Debenture Issuer Debentures, registered in
the name of the Property Trustee and having an aggregate
principal amount equal to $237,113,425 and, in satisfaction of
the purchase price for such Debentures, (x) one of the
Administrative Trustees, on behalf of the Trust, executed and
delivered to the Depositor Common Trust Securities Certificates,
registered in the name of the Depositor, representing 284,537
Common Trust Securities having an aggregate Liquidation Amount of
$7,113,425, and (y) the Property Trustee, on behalf of the Trust,
delivered to the Debenture Issuer the sum of $230,000,000
representing the proceeds from the sale of the Preferred Trust
Securities pursuant to the Underwriting Agreement.
SECTION 2.06. DECLARATION OF TRUST; APPOINTMENT OF
ADDITIONAL ADMINISTRATIVE TRUSTEES. The exclusive purposes and
functions of the Trust are (i) to issue Trust Securities and
invest the proceeds thereof in Debentures, and (ii) to engage in
those activities necessary or incidental thereto. The Depositor
hereby appoints the Trustees as trustees of the Trust, to have
all the rights, powers and duties to the extent set forth herein.
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 Securityholders. The Trustees
shall have all rights, powers and duties set forth herein and in
accordance with applicable law with respect to accomplishing the
purposes of the Trust. Anything in this Trust Agreement to the
contrary notwithstanding, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of the Property
Trustee or the Administrative Trustees set forth herein. The
Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 2.07. AUTHORIZATION TO ENTER INTO CERTAIN
TRANSACTIONS. (a) The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this
Section and Article VIII and in accordance with the following
provisions (A) and (B), the Trustees shall have the authority to
enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority, express
or implied, otherwise granted to the Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees,
acting singly or together, shall have the power, duty and
authority to act on behalf of the Trust with respect to the
following matters:
(i) the issuance and sale of the Trust Securities;
(ii) without the consent of any Person, to cause the
Trust to enter into and to execute, deliver and perform
on behalf of the Trust, the Expense Agreement, and such
other agreements as may be necessary or desirable in
connection with the consummation of the Underwriting
Agreement;
(iii) to qualify the Trust to do business in any
jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any
other payments made in respect of the Debentures;
(v) the registration of the Preferred Trust
Securities under the Securities Act of 1933, as
amended, and under state securities or blue sky laws,
and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(vi) the appointment of a Paying Agent and Transfer
Agent and Registrar in accordance with this Trust
Agreement;
(vii) registering transfers of the Trust Securities in
accordance with this Trust Agreement;
(viii) the establishment of a record date for any of
the purposes contemplated by Section 6.07 hereof;
(ix) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the
Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State
of Delaware; and
(x) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
(B) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following ministerial matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and any other
payments made in respect of the Debentures in the
Payment Account;
(iv) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with
the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the
Trust and the execution of the certificate of
cancellation to be prepared and filed by the
Administrative Trustees with the Secretary of State of
the State of Delaware; and
(viii) the taking of any ministerial action incidental
to the foregoing as the Property Trustee may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
Subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties, powers or authority of the
Administrative Trustees set forth in Sections 2.07(a)(A) and
2.07(c) or the Depositor set forth in Section 2.07(c). The
Property Trustee shall have the power and authority to exercise
all of the rights, powers and privileges of a holder of
Debentures under the Subordinated Indenture and, if an Event of
Default occurs and is continuing, the Property Trustee may, for
the benefit of Holders of the Trust Securities, in its
discretion, proceed to protect and enforce its rights as holder
of the Debentures subject to the rights of the Holders pursuant
to the terms of this Trust Agreement.
(b) So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust) shall
not undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees 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 and not as an association taxable as a corporation, (iv)
incur any indebtedness for borrowed money or (v) take or consent
to any action that would result in the placement of a Lien on any
of the Trust Property. The Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of
the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue of the Preferred Trust
Securities, the Depositor and the Administrative Trustees, acting
singly or together, (and, in the case of (iii) and (v) below,
Xxxxxx X. Xxxxx, Xx., as authorized representative of the Trust)
shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and
any actions taken by the Depositor in furtherance of the
following prior to the date of this Trust Agreement are hereby
ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form S-3 in relation to the Preferred Trust 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 Trust Securities and to do any
and all such acts, other than actions which must be
taken by or on behalf of the Trust, and advise the
Trustees of actions they must take on behalf of the
Trust, and prepare for execution and filing any
documents to be executed and filed by the Trust or on
behalf of the Trust, as the Depositor deems necessary
or advisable in order to comply with the applicable
laws of any such States;
(iii) to execute and deliver on behalf of the Trust
the Underwriting Agreement and such other agreements as
may be necessary or desirable in connection with the
consummation thereof;
(iv) to select the investment banker or bankers to
act as underwriters with respect to the offer and sale
by the Trust of Preferred Trust Securities ("Offer")
and negotiate the terms of an Underwriting Agreement
and pricing agreement providing for the Offer; and
(v) to take any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary,
the Administrative Trustees are 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
classified other than as a "grantor trust" for United States
federal income tax purposes and not as an association taxable as
a corporation and so that the Debentures will be treated as
indebtedness of the Debenture Issuer for United States federal
income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the certificate of trust filed
with the Secretary of State of the State of Delaware with respect
to the Trust (as amended or restated from time to time, the
"Certificate of Trust") or this Trust Agreement, that each of the
Depositor and the Administrative Trustees determines in its
discretion to be necessary or desirable for such purposes, as
long as such action does not materially adversely affect the
interests of the Holders of the Preferred Trust Securities.
SECTION 2.08. ASSETS OF TRUST. The assets of the
Trust shall consist of the Trust Property.
SECTION 2.09. TITLE TO TRUST PROPERTY. Legal title to
all Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.01. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property
Trustee and the Paying Agent appointed by the Administrative
Trustees shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders of Trust
Securities and for distribution as herein provided, including
(and subject to) any priority of payments provided for herein.
The Property Trustee shall have no liability in any respect
whatsoever in regards to any moneys or other property deposited
in the Payment Account at an institution other than the Property
Trustee.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect to,
the Debentures. Amounts held in the Payment Account shall not be
invested by the Property Trustee pending distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.01. DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of
the Trust available for the payment of Distributions.
Distributions shall accrue from the Closing Date, and, except in
the event that the Depositor exercises its right to extend the
interest payment period for the Debentures pursuant to Section
311 of the Subordinated Indenture, shall be payable quarterly in
arrears on March 31, June 30, September 30, and December 31 of
each year, commencing on March 31, 1999. 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) in each case, with the same force and effect as if made on
such date (each date on which Distributions are payable in
accordance with this Section 4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities
shall be fixed at a rate of 7-1/4% per annum of the Liquidation
Amount of the Trust Securities. The amount of Distributions
payable for any quarterly period shall be computed on the same
basis as interest is calculated on the Debentures. If the
interest payment period for the Debentures is extended pursuant
to Section 311 of the Subordinated Indenture, then Distributions
on the Trust Securities will be deferred for the period equal to
the extension of the interest payment period for the Debentures
and the rate per annum at which Distributions on the Trust
Securities accumulate shall be increased by an amount such that
the aggregate amount of Distributions that accumulate on all
Trust Securities during any such extended interest payment period
is equal to the aggregate amount of interest (including, to the
extent permitted by law, interest payable on unpaid interest at
the percentage rate per annum set forth above, compounded
quarterly) that accrues during any such extended interest payment
period on the Debentures. The amount of Distributions payable
for any period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be
made and shall be deemed payable on each Distribution Date only
to the extent that the Trust has funds available in the Payment
Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect
to a Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities
on the relevant record date, which shall be one Business Day
prior to the relevant Distribution Date, if Trust Securities are
in book-entry only form, and 15 days prior to the relevant
Distribution Date if Trust Securities are not in book-entry only
form.
SECTION 4.02. REDEMPTION. (a) On each Debenture
Redemption Date and at the maturity date ("Maturity Date") for
the Debentures (as defined in the Subordinated Indenture), the
Property Trustee will be required to redeem a Like Amount of
Trust Securities at the Redemption Price plus accumulated and
unpaid Distributions to the Redemption Date or Maturity Date, as
the case may be.
(b) Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Redemption Date
to each Holder of Trust Securities to be redeemed, at such
Holder's address appearing in the Security Register. All notices
of redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of
accumulated and unpaid Distributions to be paid on the
Redemption Date;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the identification and
the total Liquidation Amount of the particular Trust
Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price
plus accumulated and unpaid Distributions to the
Redemption Date will become due and payable upon each
such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after
said date.
(c) The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price plus accumulated
and unpaid Distributions to the Redemption Date with the proceeds
from the contemporaneous redemption of Debentures. Redemptions
of the Trust Securities shall be made and the Redemption Price
plus accumulated and unpaid Distributions to the Redemption Date
shall be deemed payable on each Redemption Date only to the
extent that the Trust has funds immediately available in the
Payment Account for such payment.
(d) If the Property Trustee gives a notice of
redemption in respect of any Preferred Trust Securities, then, by
12:00 noon, New York time, on the Redemption Date, subject to
Section 4.02(c), the Property Trustee shall irrevocably deposit
with the Paying Agent funds sufficient to pay the applicable
Redemption Price plus accumulated and unpaid Distributions to the
Redemption Date and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price plus
accumulated and unpaid Distributions to the Redemption Date to
the Holders thereof upon surrender of their Preferred Trust
Securities Certificates and Common Trust Securities Certificates.
Notwithstanding the foregoing, Distributions on the Trust
Securities with respect to Distribution Dates occurring on or
prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register for the
Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been
given and funds deposited as required, then on the Redemption
Date, all rights of Securityholders holding Trust Securities so
called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price plus accumulated
and unpaid Distributions to the Redemption Date thereof, but
without interest thereon, and such Trust Securities will cease to
be Outstanding. In the event that any Redemption Date is not a
Business Day, then payment of the Redemption Price payable on
such date plus accumulated and unpaid Distributions to such
Redemption Date shall be made on the next succeeding day which is
a Business Day (and without any interest or other payment in
respect of any such delay) with the same force and effect as if
made on such date. In the event that payment of the Redemption
Price plus accumulated and unpaid Distributions in respect of any
Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities
will continue to accrue, at the then applicable rate, from the
Redemption Date originally established by the Trust for such
Trust Securities to the date such Redemption Price plus
accumulated and unpaid Distributions is actually paid, in which
case the actual payment date will be deemed the date fixed for
redemption for purposes of calculating the Redemption Price plus
accumulated and unpaid Distributions to such date.
(e) Payment of the Redemption Price on the Trust
Securities shall be made to the Holders thereof as they appear on
the Securities Register for the Trust Securities on the
Redemption Date.
(f) If less than all the Outstanding Trust Securities
are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be
allocated to the Common Trust Securities and to the Preferred
Trust Securities in the proportion that the aggregate Liquidation
Amount of each is to the aggregate Liquidation Amount of all
outstanding Trust Securities. The particular Preferred Trust
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Trust Securities not previously called for
redemption, by such method as the Property Trustee shall deem
fair and appropriate and which may provide for the selection for
redemption of portions (equal to $25 or integral multiples
thereof) of the Liquidation Amount of Preferred Trust Securities
of a denomination larger than $25. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of
the Preferred Trust Securities selected for redemption and, in
the case of any Preferred Trust Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For
all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of
Preferred Trust Securities shall relate, in the case of any
Preferred Trust Securities redeemed or to be redeemed only in
part, to the portion of the Liquidation Amount of Preferred Trust
Securities which has been or is to be redeemed.
SECTION 4.03. SUBORDINATION OF COMMON TRUST
SECURITIES. (a) Payment of Distributions (including Additional
Amounts, if applicable) on, and the Redemption Price plus
accumulated and unpaid Distributions of, the Trust Securities, as
applicable, shall be made pro rata based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date an Event of Default shall
have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, or Redemption
Price plus accumulated and unpaid Distributions of, any Common
Trust Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Trust
Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Preferred Trust
Securities for all distribution periods terminating on or prior
thereto, or in the case of payment of the Redemption Price plus
accumulated and unpaid Distributions the full amount of such
Redemption Price plus accumulated and unpaid Distributions on all
Outstanding Preferred Trust Securities, shall have been made or
provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of
all Distributions (including Additional Amounts, if applicable)
on, or Redemption Price plus accumulated and unpaid Distributions
of, Preferred Trust Securities then due and payable.
(b) In the case of the occurrence of any Event of
Default resulting from a Debenture Event of Default, the Holder
of Common Trust 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 Trust
Securities have been cured, waived or otherwise eliminated.
Until all such Events of Default under this Trust Agreement with
respect to the Preferred Trust Securities have been so cured,
waived or otherwise eliminated, the Property Trustee shall act
solely on behalf of the Holders of the Preferred Trust Securities
and not the Holder of the Common Trust Securities, and only the
Holders of the Preferred Trust Securities will have the right to
direct the Property Trustee to act on their behalf.
SECTION 4.04. PAYMENT PROCEDURES. Payments in respect
of the Preferred Trust Securities shall be made by check mailed
to the address of the Person entitled thereto as such address
shall appear on the Securities Register or, if the Preferred
Trust Securities are held by a Securities Depository, such
Distributions shall be made to the Securities Depository, which
shall credit the relevant Persons' accounts at such Securities
Depository on the applicable Distribution Dates. Payments in
respect of the Common Trust Securities shall be made in such
manner as shall be mutually agreed between the Administrative
Trustees and the Holder of the Common Trust Securities.
SECTION 4.05. TAX RETURNS AND REPORTS. The
Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense and direction, and file all United
States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In
this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared or filed) the Internal Revenue
Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the related Internal Revenue Service Form
1099, or any successor form or the information required to be
provided on such form. The Administrative Trustees shall provide
the Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or
furnishing. The Trustees shall comply with United States federal
withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
SECTION 4.06. PAYMENTS UNDER INDENTURE. Any amount
payable hereunder to any Holder of Preferred Trust Securities
shall be reduced by the amount of any corresponding payment such
Holder has directly received pursuant to Section 808 of the
Subordinated Indenture. Notwithstanding the provisions hereunder
to the contrary, Securityholders acknowledge that any Holder of
Preferred Trust Securities that receives payment under Section
808 of the Subordinated Indenture may receive amounts greater
than the amount such Holder may be entitled to receive pursuant
to the other provisions of this Trust Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.01. INITIAL OWNERSHIP. Upon the creation of
the Trust by the contribution by the Depositor pursuant to
Section 2.03 and until the issuance of the Trust Securities, and
at any time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
SECTION 5.02. THE TRUST SECURITIES CERTIFICATES. The
Trust Securities Certificates shall be issued in denominations of
$25 Liquidation Amount and integral multiples thereof. The Trust
Securities Certificates shall be executed on behalf of the Trust
by manual or facsimile signature of at least one Administrative
Trustee and, if executed on behalf of the Trust by facsimile
signature, the Preferred Trust Securities shall be countersigned
by the Transfer Agent and Registrar or its agent. Trust
Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust and, if
executed on behalf of the Trust by facsimile signature,
countersigned by the Transfer Agent and Registrar or its agent,
shall be validly issued and entitled to the benefits of this
Trust Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the delivery
of such Trust Securities Certificates or did not hold such
offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate
shall become a Securityholder, and shall be entitled to the
rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Section 5.04 or
5.12.
SECTION 5.03. EXECUTION AND DELIVERY OF TRUST
SECURITIES CERTIFICATES. On the Closing Date, the Administrative
Trustees, or any one of them, shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust,
and in the case of Preferred Trust Securities executed by
facsimile signature, countersigned by the Transfer Agent and
Registrar, or its agent, and delivered to or upon the written
order of the Depositor signed by its chairman of the board, any
of its vice presidents or its treasurer, without further
corporate action by the Depositor, in authorized denominations.
The Depositor agrees to indemnify, defend and hold The Bank of
New York harmless against any and all costs and liabilities
incurred without negligence arising out of or in connection with
any such countersigning by it.
SECTION 5.04. REGISTRATION OF TRANSFER AND EXCHANGE OF
TRUST SECURITIES CERTIFICATES. The Transfer Agent and Registrar
shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.08, a Securities Register in
which, subject to such reasonable regulations as it may
prescribe, the Transfer Agent and Registrar shall provide for the
registration of Preferred Trust Securities Certificates and the
Common Trust Securities Certificates (subject to Section 5.10 in
the case of the Common Trust Securities Certificates) and
registration of transfers and exchanges of Preferred Trust
Securities Certificates as herein provided. Texas Utilities
Services Inc. shall be the initial Transfer Agent and Registrar.
Upon surrender for registration of transfer of any
Preferred Trust Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause the Transfer Agent and
Registrar or its agent to countersign and deliver, in the name of
the designated transferee or transferees, one or more new
Preferred Trust Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount. At the
option of a Holder, Preferred Trust Securities Certificates may
be exchanged for other Preferred Trust Securities Certificates in
authorized denominations of the same class and of a like
aggregate Liquidation Amount upon surrender of the Preferred
Trust Securities Certificates to be exchanged at the office or
agency maintained pursuant to Section 5.08.
Every Preferred Trust Securities Certificate presented
or surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and the Transfer
Agent and Registrar duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Preferred Trust
Securities Certificate surrendered for registration of transfer
or exchange shall be canceled and subsequently disposed of by the
Administrative Trustees in accordance with customary practice.
The Trust shall not be required to (i) issue, register the
transfer of, or exchange any Preferred Trust Securities during a
period beginning at the opening of business 15 calendar days
before the day of mailing of a notice of redemption of any
Preferred Trust Securities called for redemption and ending at
the close of business on the day of such mailing or (ii) register
the transfer of or exchange any Preferred Trust Securities so
selected for redemption, in whole or in part, except the
unredeemed portion of any such Preferred Trust Securities being
redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Trust Securities Certificates,
but the Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Preferred
Trust Securities Certificates.
SECTION 5.05. MUTILATED, DESTROYED, LOST OR STOLEN
TRUST SECURITIES CERTIFICATES. If (a) any mutilated Trust
Securities Certificate shall be surrendered to the Transfer Agent
and Registrar, or if the Transfer Agent and Registrar shall
receive evidence to its satisfaction of the destruction, loss or
theft of any Trust Securities Certificate and (b) there shall be
delivered to the Transfer Agent and Registrar and the
Administrative Trustees such security or indemnity as may be
required by them to save each of them and the Depositor harmless,
then in the absence of notice that such Trust Securities
Certificate shall have been acquired by a bona fide purchaser,
the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute by manual or facsimile signature and, if
execution on behalf of the Trust is by facsimile signature,
countersigned by a Transfer Agent and Registrar or its agent; and
the Administrative Trustees, or any one of them, and, if executed
on behalf of the Trust by facsimile signature, countersigned by
the Transfer Agent and Registrar or its agent shall make
available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of any
new Trust Securities Certificate under this Section, the
Administrative Trustees or the Transfer Agent and Registrar may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to
this Section shall constitute conclusive evidence of an 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 and the Transfer Agent and
Registrar, and any agent of the Trustee and the Transfer Agent
and Registrar, shall be entitled to treat the Person in whose
name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and neither the Trustees nor the
Transfer Agent and Registrar shall be bound by any notice to the
contrary.
SECTION 5.07. ACCESS TO LIST OF SECURITYHOLDERS' NAMES
AND ADDRESSES. The Administrative Trustees shall furnish or
cause to be furnished (x) to the Depositor, within 15 days after
receipt by any Administrative Trustee of a request therefor from
the Depositor in writing and (y) to the Property Trustee,
promptly after receipt by any Administrative Trustee of a request
therefor from the Property Trustee in writing in order to enable
the Property Trustee to discharge its obligations under this
Trust Agreement, a list, in such form as the Depositor or the
Property Trustee may reasonably require, of the names and
addresses of the Securityholders as of a recent date. If Holders
of Trust Securities Certificates evidencing ownership at such
time and for the previous six months not less than 25% of the
Outstanding aggregate Liquidation Amount apply in writing to any
Administrative Trustee, and such application states that the
applicants desire to communicate with other Securityholders with
respect to their rights under this Trust Agreement or under the
Trust Securities Certificates and such application is accompanied
by a copy of the communication that such applicants propose to
transmit, then the Administrative Trustees shall, within five
Business Days after the receipt of such application, afford such
applicants access during normal business hours to the current
list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not
to hold either the Depositor or any Trustees accountable by
reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.08. MAINTENANCE OF OFFICE OR AGENCY. The
Depositor shall or shall cause the Transfer Agent and Registrar
to maintain in the Borough of Manhattan, The City of New York, an
office or offices or agency or agencies where Preferred Trust
Securities Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Depositor, the Trust or the Transfer Agent and Registrar in
respect of the Trust Securities and the Trust Agreement may be
served. The Depositor initially designates Midwest Clearing
Corporation, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its
principal office for such purposes. The Depositor shall or shall
cause the Transfer Agent and Registrar to give prompt written
notice to the Depositor, the Property Trustee and to the
Securityholders of any change in the location of the Securities
Register or any such office or agency. If at any time the
Depositor shall fail to maintain such office or agency or shall
fail to furnish the Property Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Property Trustee,
and the Depositor hereby appoints the Property Trustee its agent
and the agent of the Trust to receive all such presentations,
surrenders, notices and demands.
SECTION 5.09. APPOINTMENT OF PAYING AGENT. The Paying
Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such
distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
the Distributions referred to above. The Property Trustee shall
be entitled to rely upon a certificate of the Paying Agent
stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one
of them may revoke such power and remove the Paying Agent if the
Administrative Trustee or any one of them determines in its sole
discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect.
The Bank of New York is hereby appointed as the initial Paying
Agent, and it may choose any co-paying agent that is acceptable
to the Administrative Trustees and the Depositor. The Paying
Agent shall be permitted to resign upon 30 days' written notice
to the Administrative Trustees and the Depositor. In the event
of the removal or resignation of The Bank of New York as Paying
Agent, the Administrative Trustees shall appoint a successor that
is reasonably acceptable to the Property Trustee and the
Depositor to act as Paying Agent (which shall be a bank, trust
company or an Affiliate of the Depositor). The Administrative
Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees
to execute and deliver to the Trustees an instrument in which
such successor Paying Agent or additional Paying Agent shall
agree with the Trustees that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if
any, held by it for payment to the Securityholders in trust for
the benefit of the Securityholders entitled thereto until such
sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon
resignation or removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee.
The provisions of Sections 8.01, 8.03 and 8.06 shall apply to the
Paying Agent appointed hereunder, and the Paying Agent shall be
bound by the requirements with respect to paying agents of
securities issued pursuant to the Trust Indenture Act. Any
reference in this Trust Agreement to the Paying Agent shall
include any co-paying agent unless the context requires
otherwise.
SECTION 5.10. OWNERSHIP OF COMMON TRUST SECURITIES BY
DEPOSITOR. On the Closing Date, the Depositor shall acquire, and
thereafter retain, beneficial and record ownership of the Common
Trust Securities. Except in connection with a transaction
involving the Depositor that would be permitted under Article
Eleven of the Subordinated Indenture, any attempted transfer of
the Common Trust Securities shall be void. The Administrative
Trustees shall cause each Common Trust Securities Certificate
issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST
AGREEMENT". Common Trust Securities Certificates representing
the Common Trust Securities shall be issued to the Depositor in
the form of a typewritten or definitive Common Trust Securities
Certificate.
SECTION 5.11. DEFINITIVE PREFERRED TRUST SECURITIES
CERTIFICATES. Upon initial issuance of the Preferred Trust
Securities, the Definitive Preferred Trust Securities
Certificates shall be typewritten, printed, lithographed or
engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees, or any one of
them. The Administrative Trustees, or any one of them, shall
execute on behalf of the Trust by manual or facsimile signature,
and, if executed by facsimile on behalf of the Trust,
countersigned by the Transfer Agent and Registrar or its agent,
the Definitive Preferred Trust Securities Certificates initially
in accordance with the instructions of the Depositor. Neither
the Transfer Agent and Registrar nor any of the Administrative
Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected
in relying on, such instructions.
SECTION 5.12. BOOK-ENTRY SYSTEM. Some or all of the
Preferred Trust Securities may be registered in the name of a
securities depository ("Securities Depository") or a nominee
therefor, and held in the custody of the Securities Depository or
a custodian thereof. In such event, a single certificate will be
issued and delivered to the Securities Depository for such
Preferred Trust Securities, in which case the Owners of such
Preferred Trust Securities will not receive physical delivery of
certificates for Preferred Trust Securities. Except as provided
herein, all transfers of beneficial ownership interests in such
Preferred Trust Securities will be made by book-entry only, and
no investor or other party purchasing, selling or otherwise
transferring beneficial ownership of the Preferred Trust
Securities will receive, hold or deliver any certificate for
Preferred Trust Securities. The Depositor, the Trustees and the
Paying Agent will recognize the Securities Depository or its
nominee as the Holder of Preferred Trust Securities for all
purposes, including notices and voting.
The Administrative Trustees, at the direction and
expense of the Depositor, may from time to time appoint a
Securities Depository or a successor thereto and enter into a
letter of representations or other agreement with such Securities
Depository to establish procedures with respect to the Preferred
Trust Securities. Any Securities Depository shall be a Clearing
Agency.
The Depositor and the Trustees covenant and agree to
meet the requirements of a Securities Depository for the
Preferred Trust Securities with respect to required notices and
other provisions of the letter of representations or agreement
executed with respect to such Preferred Trust Securities.
Whenever the beneficial ownership of any Preferred
Trust Securities is determined through the books of a Securities
Depository, the requirements in this Trust Agreement of holding,
delivering or transferring such Preferred Trust Securities shall
be deemed modified with respect to such Preferred Trust
Securities to meet the requirements of the Securities Depository
with respect to actions of the Trustees, the Depositor and the
Paying Agent. Any provisions hereof permitting or requiring
delivery of such Preferred Trust Securities shall, while such
Preferred Trust Securities are in a book-entry system, be
satisfied by the notation on the books of the Securities
Depository in accordance with applicable state law.
SECTION 5.13. RIGHTS OF SECURITYHOLDERS. The legal
title to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust
Agreement. The Preferred Trust Securities shall have no
preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor
will be fully paid and nonassessable undivided beneficial
interests in the assets of the Trust.
SECTION 5.14. CANCELLATION BY TRANSFER AGENT AND
REGISTRAR. All Trust Securities Certificates surrendered for
payment, redemption, registration of transfer or exchange shall,
if surrendered to any Person other than the Transfer Agent and
Registrar, be delivered to the Transfer Agent and Registrar and,
if not theretofore cancelled, shall be promptly cancelled by the
Transfer Agent and Registrar. No Trust Securities Certificates
shall be issued in lieu of or in exchange for any Trust
Securities Certificates cancelled as provided in this Section,
except as expressly permitted by this Trust Agreement. All
cancelled Trust Securities Certificates held by the Transfer
Agent and Registrar shall be disposed of in accordance with
customary practices.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.01. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section 6.01, in Section 10.03
and as otherwise required by law, no Holder of Preferred Trust
Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of
the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an
association. If the Property Trustee fails to enforce its rights
under the Debentures or this Trust Agreement, a Holder of
Preferred Trust Securities may institute a legal proceeding
directly against the Depositor to enforce the Property Trustee's
rights under the Debentures or this Trust Agreement, to the
fullest extent permitted by law, without first instituting any
legal proceeding against the Property Trustee or any other
person. Notwithstanding the foregoing, a Holder of Preferred
Trust Securities may directly institute a proceeding for
enforcement of payment to such Holder of principal of or interest
on the Debentures having a principal amount equal to the
aggregate liquidation preference amount of the Preferred Trust
Securities of such Holder on or after the due dates specified in
the Debentures.
(b) So long as any Debentures 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 Debenture Trustee, or executing any trust or power conferred
on the Debenture Trustee with respect to such Debentures, (ii)
waive any past default which is waivable under Section 813 of the
Subordinated Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures
shall be due and payable or (iv) consent to any amendment,
modification or termination of the Subordinated Indenture or the
Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at
least 66 2/3% of the aggregate Liquidation Amount of the
Outstanding Preferred Trust Securities; provided, however, that
where a consent under the Subordinated Indenture would require
the consent of each Holder of Debentures affected thereby, no
such consent shall be given by any Trustee without the prior
written consent of each Holder of Preferred Trust Securities.
The Trustees shall not revoke any action previously authorized or
approved by a vote of the Preferred Trust Securities, except
pursuant to a subsequent vote of the Preferred Trust Securities.
The Property Trustee shall notify all Holders of the Preferred
Trust Securities of any notice of default received from the
Debenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Preferred
Trust Securities, prior to taking any of the foregoing actions,
the Property Trustee shall, at the expense of the Depositor,
obtain an Opinion of Counsel experienced in such matters to the
effect that the Trust will be classified as a "grantor trust" and
not as an association taxable as a corporation for United States
federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i)
any action that would materially adversely affect the powers,
preferences or special rights of the Preferred Trust Securities,
whether by way of amendment to the Trust Agreement or otherwise,
or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then
the Holders of Outstanding Preferred Trust Securities as a class
will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the
approval of the Holders of at least 66 2/3% in aggregate
Liquidation Amount of the Outstanding Preferred Trust Securities.
SECTION 6.02. NOTICE OF MEETINGS. Notice of all
meetings of the Holders of Preferred Trust Securities, stating
the time, place and purpose of the meeting, shall be given by the
Administrative Trustees pursuant to Section 10.08 to each Holder
of a Preferred Trust Security, at 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 HOLDERS OF PREFERRED TRUST
SECURITIES. No annual meeting of Securityholders is required to
be held. The Administrative Trustees, however, shall call a
meeting of Securityholders to vote on any matter upon the written
request of the Holders of 25% of the then Outstanding Preferred
Trust Securities (based upon their aggregate Liquidation Amount)
and may, at any time in their discretion, call a meeting of
Holders of Preferred Trust Securities to vote on any matters as
to which the Holders of Preferred Trust Securities are entitled
to vote.
Holders of 50% of the then Outstanding Preferred Trust
Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any
meeting of Securityholders.
If a quorum is present at a meeting, an affirmative
vote by the Holders of Preferred Trust Securities present, in
person or by proxy, holding more than the lesser of (x) 66 2/3%
of the then Outstanding Preferred Trust Securities (based upon
their aggregate Liquidation Amount) held by the Holders of then
Outstanding Preferred Trust Securities present, either in person
or by proxy, at such meeting and (y) 50% of the Outstanding
Preferred Trust Securities (based upon their aggregate
Liquidation Amount) shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
SECTION 6.04. VOTING RIGHTS. Securityholders shall be
entitled to one vote for each $25 of Liquidation Amount
represented by their Trust Securities in respect of any matter as
to which such Securityholders are entitled to vote.
SECTION 6.05. PROXIES, ETC. At any meeting of
Securityholders, any Securityholder entitled to vote thereat may
vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken.
Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several Persons, any one of
them may vote at any meeting in person or by proxy in respect of
such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of
a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, or, if earlier, until eleven months after
it is sent and the burden of proving invalidity shall rest on the
challenger.
SECTION 6.06. SECURITYHOLDER ACTION BY WRITTEN
CONSENT. Any action which may be taken by Securityholders at a
meeting may be taken without a meeting and without notice if
Securityholders holding a majority of all Outstanding Trust
Securities entitled to vote in respect of such action (or such
larger proportion thereof as shall be required by any express
provision of this Trust Agreement) shall consent to the action in
writing (based upon their aggregate Liquidation Amount).
SECTION 6.07. RECORD DATE FOR VOTING AND OTHER
PURPOSES. For the purposes of determining the Securityholders
who are entitled to notice of and to vote at any meeting or to
vote by written consent, or to participate in any Distribution on
the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees may from
time to time fix a date, not more than 90 days prior to the date
of any meeting of Securityholders or the payment of Distribution
or other action including action to be taken by written consent,
as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.
SECTION 6.08. ACTS OF SECURITYHOLDERS. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such
instrument or instruments are delivered to the Administrative
Trustees. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject
to Section 8.01) conclusive in favor of the Trustees, if made in
the manner provided in this Section.
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgements of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which any Trustee deems sufficient.
The ownership of Preferred Trust Securities shall be
proved by the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to
the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of
such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
SECTION 6.09. INSPECTION OF RECORDS. Subject to
Section 5.07 concerning access to the list of Securityholders,
upon reasonable notice to the Administrative Trustees and the
Property Trustee, the other records of the Trust shall be open to
inspection by 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 PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE
SECTION 7.01. PROPERTY TRUSTEE. The Property Trustee
hereby represents and warrants for the benefit of the Depositor
and the Securityholders that:
(a) the Property Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Property Trustee and constitutes
the valid and legally binding agreement of the Property Trustee
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the
Property Trustee of this Trust Agreement will not violate,
conflict with or constitute a breach of the Property Trustee's
charter or by-laws; and
(e) the execution, delivery and performance by the
Property Trustee of this Trust Agreement does not require the
consent or approval of, the giving of notice to, or the
registration with any Federal or New York banking authority.
SECTION 7.02. DELAWARE TRUSTEE. The Delaware Trustee
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(a) the Delaware Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Delaware Trustee and constitutes
the valid and legally binding agreement of the Delaware Trustee
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement will not violate the
Delaware Trustee's charter or by-laws; and
(e) the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement does not require the
consent or approval of, the giving of notice to, or the
registration with any Federal or Delaware banking authority.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees
shall be restricted to those set forth in the express provisions
of this Trust Agreement and, in the case of the Property Trustee,
as provided in the Trust Indenture Act, and no implied covenants
or obligations shall be read into this Trust Agreement against
any of the Trustees. For purposes of Sections 315(a) and 315(c)
of the Trust Indenture act, the term "default" is hereby defined
as an Event of Default which has occurred and is continuing.
Notwithstanding the foregoing, no provision of this Trust
Agreement shall require any of the Trustees to expend or risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
Notwithstanding anything contained in this Trust Agreement to the
contrary, the duties and responsibilities of the Property Trustee
under this Trust Agreement shall be subject to the protections,
exculpations and limitations on liability afforded to the
Property Trustee under this Trust Agreement, the Trust Indenture
Act, the Delaware Business Trust Act and, to the extent
applicable, Rule 3a-7 under the Investment Company Act or any
successor rule thereunder. 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
8.01.
(b) All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made
only from the income and proceeds from the Trust Property and
only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee
or Paying Agent to make payments in accordance with the terms
hereof. Each Securityholder, by its acceptance of a Trust
Security, agrees that it will look solely to the income and
proceeds from the Trust Property to the extent available for
distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not
limit the liability of the Trustees expressly set forth elsewhere
in this Trust Agreement or, in the case of the Property Trustee,
in the Trust Indenture Act.
(c) All duties and responsibilities of the Property
Trustee contained in this Trust Agreement are subject to the
following:
(i) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of
the Trust Property shall be to deal with such property
in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the
protections, exculpations and limitations on liability
afforded to the Property Trustee under this Trust
Agreement, the Trust Indenture Act, the Delaware
Business Trust Act and, to the extent applicable, Rule
3a-7 under the Investment Company Act or any successor
rule thereunder;
(ii) the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the Trust
Property or the payment of any taxes or assessments
levied thereon or in connection therewith;
(iii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Depositor. Money held by the
Property Trustee need not be segregated from other
funds held by it except in relation to the Payment
Account established by the Property Trustee pursuant to
this Trust Agreement and except to the extent otherwise
required by law; and
(iv) the Property Trustee shall not be responsible
for monitoring the compliance by the Administrative
Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
SECTION 8.02. NOTICE OF DEFAULTS. (a) Within ninety
(90) days after the occurrence of any default known to the
Property Trustee, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.08, notice of
such default to the Securityholders and the Depositor, unless
such default shall have been cured or waived. For the purpose of
this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of
Default.
(b) Within five Business Days after receipt of
notice of the Debenture Issuer's exercise of its right to defer
the payment of interest on the Debentures pursuant to the
Subordinated Indenture, an Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.08, notice
of such exercise to the Securityholders and the Property Trustee.
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 rely and shall be
protected in acting or refraining from acting in good
faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or
transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal,
bond, debenture, note, other evidence of indebtedness
or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the
proper party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action or (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
Trust 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) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall
be promptly delivered by the Depositor or the
Administrative Trustees;
(iv) the Property Trustee may consult with counsel of
its selection and the written advice of such counsel or
any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(v) the Property Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Trust Agreement at the request or
direction of any Securityholder pursuant to this Trust
Agreement, unless such Securityholder shall have
offered to the Property Trustee reasonable security or
indemnity against the costs, expenses (including
reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying
with such request or direction;
(vi) the Property Trustee shall not be bound to make
any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, approval, bond, debenture, note or other
evidence of indebtedness or other paper or document,
but the Property Trustee, in its discretion, may make
such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Property
Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the
books, records and premises of the Depositor personally
or by agent or attorney;
(vii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents
or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care
by it hereunder;
(viii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in
good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Trust Agreement;
(ix) the Property Trustee shall not be charged with
knowledge of any default or Event of Default with
respect to the Trust Securities unless either (A) a
Responsible Officer of the Property Trustee shall have
actual knowledge of the default or Event of Default or
(B) written notice of such default or Event of Default
shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Holder
of the Trust Securities;
(x) no provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property
Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed
on it in any jurisdiction in which it shall be illegal,
or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such
right, power, duty or obligation; and no permissive or
discretionary power or authority available to the
Property Trustee shall be construed to be a duty;
(xi) no provision of this Trust Agreement shall
require the Property Trustee to expend or risk its own
funds or otherwise incur personal financial liability
in the performance of any of its duties or in the
exercise of any of its rights or powers, if the
Property Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
(xii) the Property Trustee shall have no duty to see
to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any tax or securities form) (or any
rerecording, refiling or registration thereof);
(xiii) the Property Trustee shall have the right at any
time to seek instructions concerning the administration
of this Trust Agreement from any court of competent
jurisdiction; and
(xiv) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder,
the Property Trustee (A) may request instructions from
the Holders of the Trust Securities, which instructions
may only be given by the Holders of the same
Liquidation Amount of the Trust Securities as would be
entitled to direct the Property Trustee under the terms
of this Trust Agreement in respect of such remedies,
rights or actions, (B) may refrain from enforcing such
remedy or right or taking such other action until such
instructions are received, and (C) shall be protected
in acting in accordance with such instructions.
SECTION 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES. The recitals contained herein and in the Trust
Securities Certificates shall be taken as the statements of the
Trust, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to
the title to, or value or condition of, the property of the Trust
or any part thereof, nor as to the validity or sufficiency of
this Trust Agreement, the Debentures or the Trust Securities.
The Trustees shall not be accountable for the use or application
by the Trust of the proceeds of the Trust Securities.
SECTION 8.05. MAY HOLD SECURITIES. Any Trustee or any
agent of any Trustee or the Trust, in its individual or any other
capacity, may become the owner or pledgee of Trust Securities
and, except as provided in the definition of the term
"Outstanding" in Article I, may otherwise deal with the Trust
with the same rights it would have if it were not a Trustee or
such agent.
SECTION 8.06. COMPENSATION; FEES; INDEMNITY.
The Depositor agrees:
(i) to pay to the Trustees from time to time
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);
(ii) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (gross negligence,
in the case of any Administrative Trustee), bad faith or
willful misconduct; and
(iii) to indemnify each Trustee for, and to hold each
Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), bad
faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of the
trust or trusts under this Trust Agreement, including the
reasonable costs and expenses of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of
the Depositor under this Section, each of the Trustees shall have
a lien prior to the Trust Securities upon all property and funds
held or collected by such Trustee as such, except funds held in
trust for the payment of Distributions on the Trust Securities.
In addition to the rights provided to each Trustee
pursuant to the provisions of the immediately preceding paragraph
of this Section 8.06, when a Trustee incurs expenses or renders
services in connection with an Event of Default resulting from a
Bankruptcy Event with respect to the Trust, the expenses
(including the reasonable charges and expenses of its counsel)
and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State
bankruptcy, insolvency or other similar law.
The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement.
SECTION 8.07. CERTAIN TRUSTEES REQUIRED; ELIGIBILITY.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a
Person that has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the
Property Trustee with respect to the Trust Securities shall cease
to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity
with its principal place of business in the State of Delaware
that otherwise meets the requirements of applicable Delaware law
and that shall act through one or more persons authorized to bind
such entity.
SECTION 8.08. CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Trust
Agreement. The Subordinated Indenture, the Guarantee Agreement,
the Indenture (For Unsecured Debt Securities Series A) dated as
of October 1, 1997 of the Company to The Bank of New York, as
trustee, the Indenture (For Unsecured Debt Securities Series B)
dated as of October 1, 1997 of the Company to The Bank of New
York, as trustee, the Indenture (For Unsecured Debt Securities
Series C), dated as of January 1, 1998 of the Company to The Bank
of New York, as trustee, the Purchase Contract Agreement dated as
of July 1, 1998 of the Company to The Bank of New York, as agent,
attorney-in-fact and trustee, the Indenture (For Unsecured Debt
Securities Series D and Series E), dated as of July 1, 1998 of
the Company to The Bank of New York, as trustee, the Indenture
(For Unsecured Debt Securities Series F), dated as of October 1,
1998 of the Company to The Bank of New York, as trustee and the
Indenture (For Unsecured Debt Securities Series G), dated as of
October 1, 1998 of the Company to The Bank of New York, as
trustee shall be deemed to be specifically described in this
Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE.
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the
time be located, the Depositor and the 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 property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the
other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a
request so to do, or in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for
more fully confirming to such co-trustee or separate trustee such
property, title, right, or power, any and all such instruments
shall, on request, be executed, acknowledged, and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following terms, namely:
(1) The Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustees designated for such purpose
hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred
or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or
separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties, and
obligations shall be exercised and performed by such co-
trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of
the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section
8.09, and, in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the
execution, delivery, and performance of all instruments and
agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in
the manner provided in this Section.
(4) No co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of any
Trustee, or any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee hereunder.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR. No resignation or removal of any Trustee (as the case
may be, the "Relevant Trustee") and no appointment of a successor
Relevant Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section
8.11.
The Relevant Trustee may resign at any time by giving
written notice thereof to the Securityholders. If the instrument
of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the resigning Relevant
Trustee within 30 days after the giving of such notice of
resignation, the resigning Relevant Trustee may petition any
court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at any
time by Act of the Common Trust Securityholder. If a Debenture
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 of the aggregate Liquidation Amount
of the Outstanding Preferred Trust Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the
Trust).
If the Relevant Trustee shall resign, be removed or
become incapable of continuing to act as Relevant Trustee at a
time when no Debenture Event of Default shall have occurred and
be continuing, the Common Trust Securityholder, by Act of the
Common Trust Securityholder 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 a Debenture Event of
Default shall have occurred and be continuing, the Preferred
Trust Securityholders, by Act of the Preferred Trust
Securityholders of a majority in aggregate Liquidation Amount of
the Outstanding Preferred Trust Securities 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 by the
Common Trust Securityholders or the Preferred Trust
Securityholders 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 and address of the
successor Relevant Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
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, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act
of remaining Administrative Trustees if there are at least two of
them or (ii) otherwise by the Depositor (with the successor in
each case being an individual who satisfies the eligibility
requirements for Administrative Trustees or Delaware Trustee, as
the case may be, set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes
that any Administrative Trustee who is a natural person has
become incompetent or incapacitated, the Depositor, by notice to
the remaining Trustees, may terminate the status of such Person
as an Administrative Trustee (in which case the vacancy so
created will be filled in accordance with the preceding
sentence).
No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any successor Property
Trustee or Delaware Trustee.
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Trustee
shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee and (2) shall add to or
change any of the provisions of this Trust Agreement as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees of the same trust
and that each such Relevant Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Relevant Trustee and
upon the execution and delivery of such amendment the resignation
or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such successor
Relevant Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the
Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor
Trustee all Trust Property, all proceeds thereof and money held
by such retiring Relevant Trustee hereunder with respect to the
Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee,
the retiring Relevant Trustee shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor
Relevant Trustee shall be qualified and eligible under this
Article VIII.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS. Any Person into which the Property
Trustee or the Delaware Trustee or any Administrative Trustee or
any Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
such Relevant Trustee shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and
eligible under this Article VIII, without the execution or filing
of any paper, the giving of any notice or any further act on the
part of any of the parties hereto.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST DEPOSITOR OR TRUST. If and when the Property Trustee
shall be or become a creditor of the Depositor or the Trust (or
any other obligor upon the Debentures or the Trust Securities),
the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against
the Depositor or Trust (or any such other obligor).
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE. (a) The
Property Trustee shall transmit to Securityholders such reports
concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant thereto. Such
of those reports as are required to be transmitted by the
Property Trustee pursuant to Section 313(a) of the Trust
Indenture Act shall be dated as of the next preceding September
15, and shall be transmitted no later than November 1 of each
year, commencing November 1, 1999.
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee
with each stock exchange upon which the Trust Securities are
listed, with the Commission and with the Depositor. The
Depositor will notify the Property Trustee when any Trust
Securities are listed on any stock exchange.
SECTION 8.15. REPORTS TO THE PROPERTY TRUSTEE. The
Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and
information, if any, and the compliance certificate required by
Section 314 of the Trust Indenture Act, in the form, in the
manner and at the times required by Section 314 of the Trust
Indenture Act. Delivery of such reports, information and
documents by the Depositor to the Property Trustee is for
informational purposes only and the Property Trustee's receipt of
such shall not constitute constructive notice of any information
contained therein or determinable from information contained
therein, including the Depositor's compliance with any of its
covenants hereunder (as to which the Property Trustee is entitled
to rely exclusively on Officers' Certificates).
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT. Each of the Depositor and the Administrative Trustees
on behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement (including any covenants
compliance with which constitutes a condition precedent) that
relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 8.17. NUMBER OF TRUSTEES.
(a) The number of Trustees shall be seven, provided
that Depositor, by written instrument, may increase or decrease
the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason
and the number of Administrative Trustees is not reduced pursuant
to Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul, dissolve or terminate the
Trust. Whenever a vacancy in the number of 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
Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.18. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Sections
2.07(a) and 2.07(c), including any registration statement or
amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) the Administrative Trustees shall have power to
delegate from time to time to such of their number the doing of
such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 8.19. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Trust Agreement
shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person;
or
(ii) whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that
an Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each
party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary
or accepted industry practices, and any applicable
generally accepted accounting practices or principles.
In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute
a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise;
and
(c) Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act, whenever in
this Trust Agreement an Indemnified Person is permitted or
required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it reasonably
desires, including its own interests, and shall have no
duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other
Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other
or different standard imposed by this Trust Agreement
or by applicable law.
ARTICLE IX.
TERMINATION AND LIQUIDATION
SECTION 9.01. DISSOLUTION UPON EXPIRATION DATE. The
Trust shall automatically dissolve on December 31, 2040 (the
"Expiration Date") and the Trustees shall take such action as is
required by Section 9.04.
SECTION 9.02. EARLY TERMINATION. Upon the first to
occur of any of the following events (such first occurrence, an
"Early Termination Event"):
(i) the occurrence of a Bankruptcy Event in respect
of, or the dissolution or liquidation of, the
Depositor/Debenture Issuer;
(ii) the redemption of all of the Preferred Trust
Securities;
(iii) an order for judicial dissolution of the Trust
having been entered by a court of competent
jurisdiction;
(iv) the election by the Depositor to dissolve the
Trust and, after satisfaction of liabilities to
creditors of the Trust, distribute the Debentures to
the Holders of Preferred Trust Securities in
liquidation of the Trust;
the Trust shall dissolve and the Trustees shall take such action
as is required by Section 9.04.
SECTION 9.03. TERMINATION. The respective obligations
and responsibilities of the Trust and the Trustees created hereby
shall terminate upon the latest to occur of the following: (i)
the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.04, or upon
the redemption of all of the Trust Securities pursuant to Section
4.02 or 9.04(d), of all amounts required to be distributed
hereunder upon the final payment of the Trust Securities; (ii)
the payment of any expenses owed by the Trust; and (iii) the
discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.04. LIQUIDATION. (a) Upon the Expiration
Date or if an Early Termination Event specified in clause (i),
(iii) or (iv) of Section 9.02 occurs, after satisfaction of
creditors of the Trust, if any, as provided by applicable law,
the Trust shall be liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be
appropriate by distributing to each Securityholder a Like Amount
of Debentures, subject to Section 9.04(e). Notice of liquidation
shall be given by the Administrative Trustees by first-class
mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be
outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a
Like Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or, if Section
9.04(e) applies, receive a Liquidation Distribution, as
the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Sections 9.02(ii), 9.04(d) or 9.04(e)
apply, in order to effect the liquidation of the Trust hereunder,
and any resulting distribution of the Debentures 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 Debentures in exchange
for the Outstanding Trust Securities Certificates.
(c) Except where Sections 9.02(ii), 9.04(d) or 9.04(e)
apply, after any Liquidation Date, (i) the Trust Securities will
no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Debentures will, after satisfaction
of liabilities to creditors of the Trust, if any, as provided by
applicable law, be issued to Holders of Trust Securities
Certificates, upon surrender of such Trust Securities
Certificates to the Administrative Trustees or their agent for
exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like
Amount of Debentures, accruing interest at the rate provided for
in the Debentures from the last Distribution Date on which a
Distribution was made on such Trust Securities Certificates until
such Trust Securities Certificates are so surrendered (and until
such Trust Securities Certificates are so surrendered, no
payments or interest or principal will be made to Holders of
Trust Securities Certificates with respect to such Debentures)
and (iv) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to receive,
after satisfaction of liabilities to creditors of the Trust, if
any, as provided by applicable law, Debentures upon surrender of
Trust Securities Certificates.
(d) If at any time, a Tax Event shall occur and be
continuing, and either (i) in the opinion of counsel to the
Depositor experienced in such matters, there would in all cases,
after effecting the dissolution of the Trust, after satisfaction
of liabilities to creditors of the Trust, if any, as provided by
applicable law, and the distribution of the Debentures to the
Holders of the Preferred Trust Securities in exchange therefor,
be more than an insubstantial risk that an Adverse Tax
Consequence would continue to exist or (ii) the Debentures are
not held by the Trust, then the Depositor shall have the right to
redeem the Debentures, in whole but not in part, at any time
within 90 days following the occurrence of the Tax Event.
Whether or not a Tax Event has occurred, the Depositor has the
right, at any time, to dissolve the Trust and, after satisfaction
of liabilities to creditors of the Trust, if any, as provided by
applicable law, cause the Debentures to be distributed to the
Holders of the Preferred Trust Securities and Common Trust
Securities in liquidation of the Trust on a pro rata basis.
(e) In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order for
dissolution entered by a court of competent jurisdiction or
otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical,
the Trust Property shall be liquidated, and the Trust shall be
wound-up, by the Property Trustee in such manner as the Property
Trustee determines. In such event, Securityholders will be
entitled to receive out of the assets of the Trust available for
distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust, if any, as provided by
applicable law, an amount equal to the Liquidation Amount per
Trust Security plus accumulated and unpaid Distributions thereon
to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such winding up, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of Common Trust Securities will
be entitled to receive Liquidation Distributions upon any such
winding-up or termination pro rata (determined as aforesaid) with
Holders of Preferred Trust Securities, except that, if a
Debenture Event of Default has occurred and is continuing or if a
Debenture Event of Default has not occurred solely by reason of a
requirement that time lapse or notice be given, the Preferred
Trust Securities shall have a priority over the Common Trust
Securities.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.01. GUARANTEE BY THE DEPOSITOR AND
ASSUMPTION OF OBLIGATIONS. 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"), and agrees to assume
liability for, 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 the amounts due such Holders pursuant to the terms
of the Preferred Trust Securities. This guarantee and assumption
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, incapacity, bankruptcy, dissolution
or termination of any Person having an interest, beneficial or
otherwise, in a Trust Security shall not operate to terminate
this Trust Agreement, nor dissolve, terminate or annul the Trust,
nor entitle the legal representatives or heirs of such Person or
any Securityholder for such Person, to claim an accounting, take
any action or bring any proceeding in any court for a partition
or winding up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
SECTION 10.03. AMENDMENT.
(a) This Trust Agreement may be amended from time to
time by the Trust (on approval of a majority of the
Administrative Trustees and the Depositor, without the consent of
any Securityholders), (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement or (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 for United States federal income tax purposes other
than as a "grantor trust" and not as an association taxable as a
corporation at any time that any Trust Securities are outstanding
or to ensure the Trust's exemption from the status of an
"investment company" under the Investment Company Act; provided,
however, that such action shall not adversely affect in any
material respect the interests of any Securityholder and, in the
case of clause (i), any such amendments of this Trust Agreement
shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Sections 6.01(c) and
10.03(c), any provision of this Trust Agreement may be amended by
the Administrative Trustees and the Depositor with (i) the
consent of Holders of Trust Securities representing not less than
a majority (based upon Liquidation Amounts) of the outstanding
Trust Securities and (ii) receipt by the Trustees of an Opinion
of Counsel to the effect that such amendment or the exercise of
any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust
for federal income tax purposes or the Trust's exemption from
status as an "investment company" under the Investment Company
Act.
(c) In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each
affected Securityholder, this Trust Agreement may not be amended
to (i) adversely change the amount or timing of any Distribution
on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such
payment on or after such date.
(d) Notwithstanding any other provisions of this Trust
Agreement, no amendment to this Trust Agreement may be made if,
as a result of such amendment, the Trust would not be classified
as a "grantor trust" but an association taxable as a corporation
for United States federal income tax purposes or would to fail or
cease to qualify for the exemption from status of an "investment
company" under the Investment Company Act afforded by Rule 3a-5
thereunder.
(e) Notwithstanding anything in this Trust Agreement
to the contrary, without the consent of the Depositor and the
Trustees, this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the Depositor or any
Trustee or, in the case of the Trustees, which affects any of
their respective rights, duties or immunities hereunder.
(f) In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly
provide to the Depositor a copy of such amendment.
(g) The Property Trustee and the Delaware Trustee may
join in the execution of any amendment to the Trust Agreement and
are entitled to rely upon an Opinion of Counsel as conclusive
evidence that any amendment to this Trust Agreement entered into
pursuant to this Section 10.03 is authorized or permitted by, and
conforms to, the terms of this Section 10.03, has been duly
authorized by and lawfully executed and delivered on behalf of
the other requisite parties, and that it is proper for the
Property Trustee under the provisions of this Section 10.03 to
accept the additional trusts created thereby and, if so
requested, for the Property Trustee or the Delaware Trustee to
join in the execution thereof.
SECTION 10.04. SEPARABILITY. In case any provision in
this Trust Agreement or in the Trust Securities Certificates
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 10.05. GOVERNING LAW. THIS TRUST AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS,
THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES).
SECTION 10.06. SUCCESSORS. This Trust Agreement shall
be binding upon and shall inure to the benefit of any successor
to the Trust or the Relevant Trustees or any of them, including
any successor by operation of law.
SECTION 10.07. HEADINGS. The Article and Section
headings are for convenience only and shall not affect the
construction of this Trust Agreement.
SECTION 10.08. NOTICE AND DEMAND. Any notice, demand
or other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or
upon any Securityholder or the Depositor may be given or served
in writing by deposit thereof, postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each
case, addressed, (i) in the case of a Preferred Trust
Securityholder, to such Preferred Trust Securityholder as such
Securityholder's name and address may appear on the Securities
Register and (ii) in the case of the Depositor, to Texas
Utilities Company, Energy Plaza, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx
00000, Attention: Treasurer, facsimile no. 000-000-0000, with a
copy to the Secretary, facsimile no. 000-000-0000. 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.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the
Trust) as follows: (i) with respect to the Property Trustee or
the Delaware Trustee, The Bank of New York, 000 Xxxxxxx Xxxxxx,
Xxxxx 21 West, New York, New York 10286, Attention: Corporate
Trust Department, with a copy to: The Bank of New York
(Delaware), Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Department, and (ii) with respect to
the Trust or the Administrative Trustees, at the address above
for notice to the Depositor, marked "Attention: Administrative
Trustees for TXU Capital I". Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall
be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Trust or the Property
Trustee.
SECTION 10.09. AGREEMENT NOT TO PETITION. Each of the
Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders, that it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in
writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel
for the Property Trustee or the Trust may assert. The provisions
of this Section 10.09 shall survive the termination of this Trust
Agreement.
SECTION 10.10. CONFLICT WITH TRUST INDENTURE ACT. (a)
This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required or deemed to be part of this
Trust Agreement and shall, to the extent applicable, be governed
by such provisions.
(b) The Property Trustee shall be the only Trustee
which is a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required or deemed
provision shall control.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Trust
Securities as equity securities representing interests in the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE
THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS
HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE
TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND THE AGREEMENT OF
THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS
AND PROVISIONS SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS
BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
IN WITNESS WHEREOF, the parties have caused this Amended and
Restated Trust Agreement to be duly executed, all as of the day
and year first above written.
TEXAS UTILITIES COMPANY
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Title: Treasurer and Assistant
Secretary
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title: Authorized Signatory
/s/ Xxxxx Xxxxxxxx
------------------------------
Xxxxx Xxxxxxxx
solely in her capacity as
Administrative Trustee
/s/ Xxxx X. Xxxxxx
------------------------------
Xxxx X. Xxxxxx
solely in his capacity as
Administrative Trustee
/s/ Xxxxxx Xxxxxxxx
------------------------------
Xxxxxx Xxxxxxxx
solely in her capacity as
Administrative Trustee
/s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx
solely in his capacity as
Administrative Trustee
/s/ Xxx Xxxxxx
------------------------------
Xxx Xxxxxx
solely in his capacity as
Administrative Trustee
EXHIBIT A
CERTIFICATE OF TRUST
OF
TXU CAPITAL I
THIS CERTIFICATE OF TRUST of TXU Capital I (the
"Trust"), dated as of December 3, 1998, is being duly executed
and filed by the undersigned, as trustees, to form a business
trust under the Delaware Business Trust Act (12 Del. C. S. 3801,
-------
et seq.).
------
1. Name. The name of the business trust being created
hereby is TXU Capital I.
2. Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in
the State of Delaware are The Bank of New York (Delaware), Xxxxx
Xxxx Center, Xxxxx 000, Xxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx
00000.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
THE BANK OF NEW YORK (DELAWARE), XXXXX XXXXXXXX,
not in its individual capacity not in her individual capacity
but solely as Trustee but solely as Trustee
By:/s/Xxxx Xxxx Xxxxxxxxx By:/s/ Xxxxx Xxxxxxxx
-------------------------- -------------------------
Name: Xxxx Xxxx Xxxxxxxxx
Title: Authorized Signatory
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:/s/Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS
PROVIDED IN THE TRUST AGREEMENT
Certificate Number Number of Common Trust Securities
C-[ ]
Certificate Evidencing Common Trust Securities
of
TXU Capital I
Common Trust Securities
(liquidation amount $25 per Common Trust Security)
TXU Capital I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies
that Texas Utilities Company (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 Trust Securities (liquidation
amount $25 per Common Trust Security) (the "Common Trust
Securities"). Except as permitted by Section 5.10 of the Trust
Agreement (as defined below), the Common Trust Securities are not
transferable and any attempted transfer hereof shall be void.
The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Trust Securities are
set forth in, and this certificate and the Common Trust
Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended
and Restated Trust Agreement of the Trust dated as of December
30, 1998, as the same may be amended from time to time (the
"Trust Agreement"), including the designation of the terms of the
Common Trust Securities as set forth therein. 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.
IN WITNESS WHEREOF, an Administrative Trustee of the
Trust has executed this certificate for and on behalf of the
Trust this day of , 199 .
--- -------- -
TXU Capital I
By:
------------------------------
not in his (her) individual
capacity, but solely as
Administrative Trustee
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of December 30, 1998 between Texas
Utilities Company, a Texas corporation ("TUC"), and TXU Capital
I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Trust
Securities (the "Common Trust Securities") to and receive
Debentures from TUC and to issue its 7-1/4% Cumulative Trust
Preferred Capital Securities (the "Preferred Trust 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 December 30, 1998 as the same may be
amended from time to time (the "Trust Agreement");
WHEREAS, TUC is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance of
the Preferred Trust Securities by each holder thereof, which
acceptance TUC hereby agrees shall benefit TUC and which
acceptance TUC acknowledges will be made in reliance upon the
execution and delivery of this Agreement, TUC, including in its
capacity as holder of the Common Trust Securities, and the Trust
hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by TUC. Subject to the terms
-----------------
and conditions hereof, TUC hereby irrevocably and unconditionally
assumes the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to each person or entity to
whom the Trust is now or hereafter becomes indebted or liable
(the "Beneficiaries"). As used herein, "Obligations" means any
indebtedness, expenses or liabilities of the Trust, other than
obligations of the Trust to pay to holders of any Preferred Trust
Securities the amounts due such holders pursuant to the terms of
the Preferred Trust Securities. 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 Trust Securities or any Beneficiary must restore
payment of any sums paid under the Preferred Trust Securities,
under any Obligation, under the Guarantee Agreement dated the
date hereof by and between TUC and The Bank of New York, as
guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
Section 1.03. Waiver of Notice. TUC hereby waives
----------------
notice of acceptance of this Agreement and of any Obligation to
which it applies or may apply, and TUC 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 TUC under this Agreement
shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of
the assets of the Trust.
Neither the Trust nor any Beneficiary shall have any obligation
to give notice to, or obtain the consent of, TUC with respect to
the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
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this Agreement directly against TUC and TUC waives any right or
remedy to require that any action be brought against the Trust or
any other person or entity before proceeding against TUC.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations,
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covenants and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives
of TUC and shall inure to the benefit of the Beneficiaries and
their successors and assigns.
Section 2.02. Amendment. So long as there remains any
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Beneficiary or any Preferred Trust Securities of any series shall
be outstanding, this Agreement shall not be modified or amended
in any manner adverse to such Beneficiary or to the holders of
the Preferred Trust Securities.
Section 2.03. Notices. Any notice, request or other
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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 follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to wit:
TXU Capital I
c/o Xxxxx Xxxxxxxx, Administrative Trustee
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Texas Utilities Company
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Attention: Treasurer
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first
above written.
TEXAS UTILITIES COMPANY
By:
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Name:
Title:
TXU CAPITAL I
By:
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not in his (her) individual
capacity, but solely as
Administrative Trustee
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Trust Securities
P- CUSIP NO.
Certificate Evidencing Preferred Trust Securities
of
TXU Capital I
7-1/4% Cumulative Trust Preferred Capital Securities
(liquidation amount $25 per Preferred Trust Security)
TXU Capital I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies
that (the "Holder") is the registered owner of
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( ) Preferred Trust Securities of the Trust representing an
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undivided beneficial interest in the assets of the Trust and
designated the TXU Capital I 7-1/4% Cumulative Trust Preferred
Capital Securities (liquidation amount $25 per Preferred Trust
Security) (the "Preferred Trust Securities"). The Preferred
Trust Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer
as provided in Section 5.04 or 5.12 of the Trust Agreement (as
defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the
Preferred Trust Securities are set forth in, and this certificate
and the Preferred Trust Securities represented hereby are issued
and shall in all respects be subject to the terms and provisions
of, the Amended and Restated Trust Agreement of the Trust dated
as of December 30, 1998, as the same may be amended from time to
time (the "Trust Agreement"). The holder of this certificate is
entitled to the benefits of the Guarantee Agreement of Texas
Utilities Company, a Texas corporation, and The Bank of New York,
as guarantee trustee, dated as of December 30, 1998 (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.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees
of the Trust has executed this certificate for and on behalf of
the Trust.
Dated:
TXU CAPITAL I
By:
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not in his (her) individual
capacity, but solely as
Administrative Trustee
Countersigned and Registered:
TEXAS UTILITIES SERVICES INC.,
Transfer Agent and Registrar
By:
------------------------------
(Authorized Signature)
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Trust 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)
of the Preferred Trust Securities represented by this Certificate
and irrevocably appoints
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attorney to transfer such Preferred Trust Securities Certificate
on the books of the Trust. The attorney may substitute another to
act for him or her.
Date:
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Signature:
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(Sign exactly as your name appears on the other side of this
Preferred Trust Securities Certificate)
Signature:
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(Sign exactly as your name appears on the other side of this
Preferred Trust Securities Certificate)
