EXHIBIT 4.13
FORM OF
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
UNION ELECTRIC COMPANY
AS DEPOSITOR,
-------------------------------------
AS PROPERTY TRUSTEE,
AND
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AS DELAWARE TRUSTEE
DATED AS OF ____________________, 200_
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UNION ELECTRIC CAPITAL TRUST __
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINED TERMS................................................................................1
SECTION 101. DEFINITIONS......................................................................................1
ARTICLE II CONTINUATION OF THE TRUST...................................................................11
SECTION 201. NAME............................................................................................11
SECTION 202. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS.....................................11
SECTION 203. INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL EXPENSES.................................11
SECTION 204. ISSUANCE OF THE TRUST PREFERRED SECURITIES......................................................11
SECTION 205. ISSUANCE OF THE TRUST COMMON SECURITIES; SUBSCRIPTION AND PURCHASE OF [SUBORDINATED] DEBT
SECURITIES......................................................................................12
SECTION 206. DECLARATION OF TRUST............................................................................13
SECTION 207. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS................................................13
SECTION 208. ASSETS OF TRUST.................................................................................16
SECTION 209. TITLE TO TRUST PROPERTY.........................................................................16
ARTICLE III PAYMENT ACCOUNT.............................................................................16
SECTION 301. PAYMENT ACCOUNT.................................................................................16
ARTICLE IV DISTRIBUTION; REDEMPTION....................................................................17
SECTION 401. DISTRIBUTIONS...................................................................................17
SECTION 402. REDEMPTION......................................................................................18
SECTION 403. SUBORDINATION OF TRUST COMMON SECURITIES........................................................20
SECTION 404. PAYMENT PROCEDURES..............................................................................21
SECTION 405. TAX RETURNS AND REPORTS.........................................................................21
SECTION 406. PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.....................................................22
SECTION 407. PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT ACTIONS..........................................22
SECTION 408. LIABILITY OF THE HOLDER OF TRUST COMMON SECURITIES..............................................22
ARTICLE V TRUST SECURITIES CERTIFICATES...............................................................22
SECTION 501. INITIAL OWNERSHIP...............................................................................22
SECTION 502. THE TRUST SECURITIES CERTIFICATES...............................................................22
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SECTION 503. EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES.........................................23
SECTION 504. GLOBAL TRUST PREFERRED SECURITIES...............................................................23
SECTION 505. REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY; CERTAIN TRANSFERS AND EXCHANGES; TRUST
PREFERRED SECURITIES CERTIFICATES...............................................................25
SECTION 506. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES CERTIFICATES..............................26
SECTION 507. PERSONS DEEMED HOLDERS..........................................................................27
SECTION 508. ACCESS TO LIST OF HOLDERS' NAMES AND ADDRESSES..................................................27
SECTION 509. MAINTENANCE OF OFFICE OR AGENCY.................................................................28
SECTION 510. APPOINTMENT OF PAYING AGENT.....................................................................28
SECTION 511. OWNERSHIP OF TRUST COMMON SECURITIES BY DEPOSITOR...............................................28
SECTION 512. NOTICES TO DEPOSITARY...........................................................................29
SECTION 513. RIGHTS OF HOLDERS...............................................................................29
ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING...........................................................31
SECTION 601. LIMITATIONS ON HOLDER'S VOTING RIGHTS...........................................................31
SECTION 602. NOTICE OF MEETINGS..............................................................................32
SECTION 603. MEETINGS OF HOLDERS.............................................................................32
SECTION 604. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.....34
SECTION 605. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.................................................35
SECTION 606. HOLDER ACTION BY WRITTEN CONSENT................................................................35
SECTION 607. RECORD DATE FOR VOTING AND OTHER PURPOSES.......................................................35
SECTION 608. ACTS OF HOLDERS.................................................................................35
SECTION 609. INSPECTION OF RECORDS...........................................................................37
ARTICLE VII REPRESENTATIONS AND WARRANTIES..............................................................37
SECTION 701. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE AND THE
DELAWARE TRUSTEE.................37
SECTION 702. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.....................................................38
ARTICLE VIII THE TRUSTEES; THE ADMINISTRATORS............................................................39
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.............................................................39
SECTION 802. EVENTS OF DEFAULT; WAIVER.......................................................................40
SECTION 803. CERTAIN NOTICES.................................................................................41
SECTION 804. CERTAIN RIGHTS OF PROPERTY TRUSTEE..............................................................41
SECTION 805. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES..........................................42
SECTION 806. MAY HOLD SECURITIES.............................................................................42
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SECTION 807. COMPENSATION; INDEMNITY.........................................................................42
SECTION 808. TRUSTEES REQUIRED; ELIGIBILITY OF TRUSTEES AND ADMINISTRATORS...................................43
SECTION 809. CONFLICTING INTERESTS...........................................................................44
SECTION 810. CO-TRUSTEES AND SEPARATE TRUSTEE................................................................44
SECTION 811. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...............................................45
SECTION 812. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..........................................................47
SECTION 813. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.....................................47
SECTION 814. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR TRUST....................................48
SECTION 815. TRUSTEE MAY FILE PROOFS OF CLAIM................................................................48
SECTION 816. REPORTS BY PROPERTY TRUSTEE.....................................................................49
SECTION 817. REPORTS TO THE PROPERTY TRUSTEE.................................................................49
SECTION 818. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT................................................49
SECTION 819. NUMBER OF TRUSTEES..............................................................................49
SECTION 820. DELEGATION OF POWER.............................................................................50
SECTION 821. APPOINTMENT OF ADMINISTRATORS...................................................................50
SECTION 822.
DELAWARE TRUSTEE................................................................................50
ARTICLE IX DISSOLUTION, LIQUIDATION AND MERGER.........................................................51
SECTION 901. DISSOLUTION UPON EXPIRATION DATE................................................................51
SECTION 902. EARLY DISSOLUTION...............................................................................51
SECTION 903. TERMINATION.....................................................................................52
SECTION 904. LIQUIDATION.....................................................................................52
SECTION 905. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST.............................53
ARTICLE X MISCELLANEOUS PROVISIONS....................................................................54
SECTION 1001. LIMITATIONS OF RIGHTS OF HOLDERS................................................................54
SECTION 1002. AMENDMENT.......................................................................................54
SECTION 1003. SEPARABILITY....................................................................................56
SECTION 1004. GOVERNING LAW...................................................................................56
SECTION 1005. PAYMENTS DUE ON NON-BUSINESS DAY................................................................56
SECTION 1006. SUCCESSORS......................................................................................57
SECTION 1007. HEADINGS........................................................................................57
SECTION 1008. REPORTS, NOTICES AND DEMANDS....................................................................57
SECTION 1009. AGREEMENT NOT TO PETITION.......................................................................57
SECTION 1010. TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT..........................................58
SECTION 1011. ACCEPTANCE OF TERMS OF
TRUST AGREEMENT, GUARANTEE AND INDENTURE.................................58
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Exhibit A Certificate of Trust
Exhibit B Form of Trust Common Securities Certificate
Exhibit C Form of Trust Preferred Securities Certificate
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UNION ELECTRIC CAPITAL TRUST __
Certain Sections of this
Trust Agreement relating, to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Act
Section Trust Agreement Section
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Section 310 (a)(1)...................................................808
(a)(2)...................................................808
(a)(3)...................................................810
(a)(4)...................................................207(a)(ii)
(b)......................................................809, 811
Section 311 (a)......................................................814
(b)......................................................814
Section 312 (a)......................................................508
(b)......................................................508
(c)......................................................508
Section 313 (a)......................................................816
(b)......................................................816
(c)......................................................816
(d)......................................................816
Section 314 (a)......................................................817
(a)(4)...................................................818
(b)......................................................Not Applicable
(c)(1)...................................................818
(c)(2)...................................................818
(c)(3)...................................................Not Applicable
(d)......................................................Not Applicable
(e)......................................................818
Section 315 (a)......................................................801, 804
(b)......................................................803
(c)......................................................801
(d)......................................................801
(e)......................................................Not Applicable
Section 316 (a)......................................................513
(a)(1)(A)................................................513
(a)(1)(B)................................................513
(a)(2)...................................................Not Applicable
(b)......................................................513
(c)......................................................607
Section 317 (a)(1)...................................................Not Applicable
(a)(2)...................................................815
(b)......................................................510
Section 318 (a)......................................................1010(a)
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the
Trust Agreement.
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AGREEMENT
THIS AMENDED AND RESTATED
TRUST AGREEMENT (this "
Trust Agreement"), dated
as of _____________________, 200_, by and among (i)
Union Electric Company, a
Missouri corporation (including any successors or assigns, the "Depositor"),
(ii) __________________________, a New York banking corporation, as property
trustee (in such capacity, the "Property Trustee" and, in its separate corporate
capacity and not in its capacity as Property Trustee, the "Bank"), (iii)
_________________________________, a ____________________ banking corporation,
as
Delaware trustee (the "
Delaware Trustee") (the Property Trustee and the
Delaware Trustee are referred to collectively herein as the "Trustees"), and
(iv) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor and the
Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the
Delaware Business
Trust Act by entering into a certain
Trust Agreement, dated as of
__________________________ (the "Original
Trust Agreement"), and by the
execution and filing by the
Delaware Trustee with the Secretary of State of the
State of Delaware of the Certificate of Trust, filed on ______________________
(the "Certificate of Trust"), attached as Exhibit A; and
WHEREAS, the Depositor and the Delaware Trustee desire to amend and restate
the Original
Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Trust Common Securities by the Trust
to the Depositor, (ii) the issuance and sale of the Trust Preferred Securities
by the Trust pursuant to the Underwriting Agreement, (iii) the acquisition by
the Trust from the Depositor of all of the right, title and interest in the
[Subordinated] Debt Securities, (iv) the appointment of the Administrators and
(v) the addition of the Property Trustee as a party to this Trust Agreement;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees, intending to be legally
bound, as follows:
ARTICLE I
DEFINED TERMS
Section 101. Definitions. For all purposes of this Trust Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(d) all accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally accepted
accounting principles as in effect at the time of computation;
(e) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement;
(f) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(g) all references to the date the Trust Preferred Securities were
originally issued shall refer to the date the ______% Trust Preferred Securities
were originally issued.
"ACT" has the meaning specified in Section 608.
"ADDITIONAL AMOUNTS" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest paid
by the Depositor on a Like Amount of [Subordinated] Debt Securities for such
period.
"ADDITIONAL INTEREST" has the meaning specified in Section [101] of the
Indenture.
"ADDITIONAL SUMS" has the meaning specified in Section [608] of the
Indenture.
"ADMINISTRATORS" means each Person appointed in accordance with Section 821
solely in such Person's capacity as Administrator of the Trust continued
hereunder and not in such Person's individual capacity, or any successor
Administrator appointed as herein provided; with the initial Administrators
being ___________________ and _____________________.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"APPLICABLE PROCEDURES" means, with respect to any transfer or transaction
involving a Global Trust Preferred Security or beneficial interest therein, the
rules and procedures of the Depositary for such Trust Preferred Security, in
each case to the extent applicable to such transaction and as in effect from
time to time.
"BANK" has the meaning specified in the preamble to this Trust Agreement.
"BANKRUPTCY EVENT" means, with respect to any Person:
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(a) the entry of a decree or order by a court having jurisdiction
in the premises and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; (i) judging such Person a bankrupt
or insolvent; (ii) approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in respect of
such Person under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law; (iii) appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of such Person or of
any substantial part of its property; (iv) ordering the winding-up or
liquidation of its affairs; or
(b) (i) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent; (ii) the consent by it to the institution
of bankruptcy or insolvency proceedings against it; (iii) the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law; (iv) the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
similar official) of such Person or of any substantial part of its property; (v)
the making by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt; (vi) the taking of corporate
action by such Person in furtherance of any such action.
"BANKRUPTCY LAWS" has the meaning specified in Section 1009.
"BOARD OF DIRECTORS" means either the board of directors of the Depositor
or any committee thereof duly authorized to act or any director or directors
and/or officer or officers of the Depositor to whom that board or committee
shall have duly delegated its authority in respect of matters relating to this
Trust Agreement.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustees.
"BUSINESS DAY" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in the City of New York, New York, or the City of
St. Louis, Missouri are authorized or required by law or executive order to
remain closed or (c) a day on which the Property Trustee's Corporate Trust
Office or the Delaware Trustee's corporate trust office or the corporate trust
office of the Debt Trustee is closed for business.
"CEDE" means Cede & Co.
"CERTIFICATE OF TRUST" has the meaning specified in the preamble to this
Trust Agreement.
"CLOSING DATE" means the Closing Time, which date is also the date of
execution and delivery of this Trust Agreement.
"CLOSING TIME" means the First Closing Date, as that term is used
throughout the Underwriting Agreement.
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"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, as amended, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of the
Property Trustee located in the City of New York which at the time of the
execution of this Trust Agreement is located at________________________________,
New York, New York ____________.
"DEBT EVENT OF DEFAULT" means an "Event of Default" as defined in the
Indenture.
"DEBT PURCHASE AGREEMENT" means the [Subordinated] Debt Securities Purchase
Agreement dated as of ___________________________ between the Depositor and the
Trust, as the same may be amended from time to time.
"DEBT REDEMPTION DATE" means, with respect to any [Subordinated] Debt
Securities to be redeemed under the Indenture, the date fixed for redemption of
such Debt Securities under the Indenture.
"DEBT TRUSTEE" means ________________________________, a New York banking
corporation, as trustee under the Indenture, and any successor.
"DEFINITIVE TRUST PREFERRED SECURITIES" has the meaning specified in
Section 504(c).
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801, et seq., as it may be amended from time to time.
"DELAWARE TRUSTEE" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"DEPOSITARY" shall mean, with respect to Global Trust Preferred Securities,
The Depository Trust Company, New York, New York, another clearing agency, or
any successor registered as a clearing agency under the Exchange Act or other
applicable statute or regulation, which, in each case, shall be designated by
the Depositor pursuant to Section 504(b).
"DEPOSITARY PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Depositary effects
book-entry transfers and pledges of securities deposited with the Depositary.
"DEPOSITOR" has the meaning specified in the preamble to this Trust
Agreement.
"DISTRIBUTION DATE" has the meaning specified in Section 401(a).
4
"DISTRIBUTIONS" means amounts payable in respect of the Trust Securities as
provided in Section 401.
"EARLY TERMINATION EVENT" has the meaning specified in Section 902.
"EVENT OF DEFAULT" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debt Event of Default;
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of 30
days;
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable;
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance of which or the breach of
which is dealt with in clause (b) or (c) above) and continuation of such default
or breach for a period of 60 days after there has been given, by registered or
certified mail, to the Trustees and the Depositor by the Holders of at least 33%
in aggregate Liquidation Amount of the Outstanding Trust Preferred Securities, a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
(e) the occurrence of any Bankruptcy Event with respect to the
Property Trustee or all or substantially all of its property if a successor
Property Trustee has not been appointed within a period of 90 days thereof; or
(f) the occurrence of any Bankruptcy Event with respect to the Trust.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
and any successor statute thereto, as amended from time to time.
"EXPIRATION DATE" has the meaning specified in Section 901.
"GLOBAL TRUST PREFERRED SECURITIES CERTIFICATE" means a Trust Preferred
Securities Certificate evidencing ownership of Global Trust Preferred
Securities.
"GLOBAL TRUST PREFERRED SECURITY" means a Trust Preferred Security, the
ownership and transfers of which shall be made through book entries by the
Depositary as described in Section 504.
"GUARANTEE" means the Guarantee Agreement executed and delivered by the
Depositor and __________________, as trustee, contemporaneously with the
execution and delivery of this
5
Trust Agreement, for the benefit of the Holders of the Trust Preferred
Securities, as amended from time to time.
"HOLDER" means a Person in whose name a Trust Security or Trust Securities
is registered in the Securities Register; any such Person shall be deemed to be
a beneficial owner within the meaning of the Delaware Business Trust Act.
"INDENTURE" means the Indenture, dated as of _____________, between the
Depositor and the Debt Trustee (as amended or supplemented from time to time)
relating to the issuance of the [Subordinated] Debt Securities.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended.
"INVESTMENT COMPANY EVENT" means the receipt by the Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or a written change (including any
announced prospective change) in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is or will be
considered an "investment company" that is required to be registered under the
Investment Company Act, which change or prospective change becomes effective or
would become effective, as the case may be, on or after the date of the issuance
of the Trust Preferred Securities.
"LIEN" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"LIKE AMOUNT" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to that portion of the
principal amount of [Subordinated] Debt Securities to be contemporaneously
redeemed in accordance with the Indenture, allocated to the Trust Common
Securities and to the Trust Preferred Securities pro rata based upon the
relative Liquidation Amounts of such classes and (b) with respect to a
distribution of [Subordinated] Debt Securities to Holders of Trust Securities in
connection with a dissolution or liquidation of the Trust, [Subordinated] Debt
Securities having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such [Subordinated] Debt Securities are
distributed.
"LIQUIDATION AMOUNT" means the stated amount of $__________ per Trust
Security.
"LIQUIDATION DATE" means the date on which [Subordinated] Debt Securities
are to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 904.
"LIQUIDATION DISTRIBUTION" has the meaning specified in Section 904(d).
"MAJORITY IN LIQUIDATION AMOUNT OF THE TRUST PREFERRED SECURITIES" or
"MAJORITY IN LIQUIDATION AMOUNT OF THE TRUST COMMON SECURITIES" means, except as
provided by the Trust Indenture Act, Trust Preferred Securities or Trust Common
Securities, as the case may be,
6
representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Trust Preferred Securities or Trust Common Securities, as the case
may be.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of the
Board, President, any Vice President, the Treasurer or any other duly authorized
officer of the Depositor, and delivered to the party provided herein. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement (other than pursuant to Section
817) shall include:
(a) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such Person
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for or an employee of the Depositor or any Affiliate of the Depositor or any
Trustee.
"ORIGINAL TRUST AGREEMENT" has the meaning specified in the preamble to
this Trust Agreement.
"OUTSTANDING," when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore authenticated and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Trust Preferred Securities, provided that
if such Trust Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid, or in exchange for, or in
lieu of which, other Trust Securities have been executed and delivered pursuant
to Sections 504, 505 and 506, other than any such Trust Securities in respect of
which there shall have been presented to the Property Trustee proof satisfactory
to it and the Depositor that such Trust Securities are held by a bona fide
purchaser or purchasers in whose hands such Trust Securities are valid
obligations of the Depositor;
7
provided, however, that in determining whether or not the Holders of the
requisite Liquidation Amount of the Trust Preferred Securities Outstanding under
this Trust Agreement have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a quorum is present at a
meeting of Holders of Trust Securities, Trust Securities owned by the Depositor,
any Trustee, any Administrator or any other obligor upon the Trust Securities or
any Affiliate of the Depositor or of such other obligor (unless the Depositor,
such Affiliate or such obligor owns all Trust Securities Outstanding under this
Trust Agreement determined without regard to this proviso) shall be disregarded
and deemed not to be Outstanding, except that (i) in determining whether any
Trustee or any Administrator shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver or upon any
such determination as to the presence of a quorum, only Trust Preferred
Securities that such Trustee or such Administrator, as the case may be, knows to
be so owned shall be so disregarded and (ii) the foregoing shall not apply at
any time when all of the Outstanding Trust Preferred Securities are owned by the
Depositor, one or more of the Trustees, one or more of the Administrators and/or
any such Affiliate; provided, however, that Trust Preferred Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrators the pledgee's
right so to act with respect to such Trust Preferred Securities and that the
pledgee is not the Depositor or any other obligor upon the Trust Preferred
Securities or any Affiliate of the Depositor or of such other obligor.
"OWNER" means each Person who is the beneficial owner of Global Trust
Preferred Securities as reflected in the records of the Depositary or, if a
Depositary Participant is not the Owner, then as reflected in the records of a
Person maintaining an account with such Depositary (directly or indirectly), in
accordance with the rules of such Depositary.
"PAYING AGENT" means any paying agent or co-paying agent appointed pursuant
to Section 510 and shall initially be the Property Trustee.
"PAYMENT ACCOUNT" means a segregated non-interest-bearing corporate trust
account maintained with the Property Trustee in its corporate trust department
for the benefit of the Holders in which all amounts paid in respect of the
[Subordinated] Debt Securities will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Holders in accordance with
Sections 401 and 402.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated organization or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"PROPERTY TRUSTEE" means the Person identified as the "Property Trustee" in
the preamble to this Trust Agreement solely in its capacity as Property Trustee
of the Trust continued hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor property trustee
appointed as herein provided.
"REDEMPTION DATE" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debt Redemption Date and the stated maturity of the
[Subordinated] Debt Securities shall be a
8
Redemption Date for a Like Amount of Trust Securities, including but not limited
to any date of redemption pursuant to the occurrence of any Special Event.
"REDEMPTION PRICE" means a price equal to 100% of the Liquidation Amount of
the Trust Security to be redeemed, together with accumulated Distributions to
but excluding the date fixed for redemption and the related amount of the
premium, if any, paid by the Depositor upon the concurrent redemption of the
[Subordinated] Debt Securities.
"RELEVANT TRUSTEE" has the meaning specified in Section 811.
"RESPONSIBLE OFFICER" when used with respect to the Property Trustee means
any officer assigned to the Corporate Trust Office, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary, trust officer, senior trust officer or any other officer of
the Property Trustee customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for the
administration of the Indenture, and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and any
successor statute thereto, in each case as amended from time to time.
"SECURITIES REGISTER" and "SECURITIES REGISTRAR" have the respective
meanings specified in Section 505.
"SENIOR INDEBTEDNESS" has the meaning specified in the Indenture.
"SPECIAL EVENT" means any Tax Event or Investment Company Event.
"[SUBORDINATED] DEBT SECURITIES" means the aggregate principal amount of
the Depositor's ___________% [Subordinated] Debt Securities, Series __ due
___________________, issued pursuant to the Indenture.
"SUCCESSOR TRUST PREFERRED SECURITIES CERTIFICATE" of any particular Trust
Preferred Securities Certificate means every Trust Preferred Securities
Certificate issued after, and evidencing all or a portion of the same beneficial
interest in the Trust as that evidenced by, such particular Trust Preferred
Securities Certificate; and, for the purposes of this definition, any Trust
Preferred Securities Certificate executed and delivered under Section 506 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Trust
Preferred Securities Certificate shall be deemed to evidence the same beneficial
interest in the Trust as the mutilated, destroyed, lost or stolen Trust
Preferred Securities Certificate.
"SUCCESSOR TRUST PREFERRED SECURITY" has the meaning specified in Section
905.
"TAX EVENT" means the receipt by the Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of any amendment to,
or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or
9
regulations, which amendment or change is effective or which pronouncement,
action or decision is announced on or after the date of issuance of the Trust
Preferred Securities (including, without limitation, any of the foregoing
arising with respect to, or resulting from, any proceeding or other action
commencing on or before such date), there is more than an insubstantial risk
that (i) the Trust is, or will be within 90 days of the delivery of such Opinion
of Counsel, subject to United States Federal income tax with respect to income
received or accrued on the [Subordinated] Debt Securities, (ii) interest payable
by the Depositor on the [Subordinated] Debt Securities is not, or within 90 days
of the delivery of such Opinion of Counsel will not be, deductible by the
Depositor, in whole or in part, for United States Federal income tax purposes,
or (iii) the Trust is, or will be within 90 days of the delivery of such Opinion
of Counsel, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"TRUST" means Union Electric Capital Trust __.
"TRUST AGREEMENT" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits hereto, and (ii) for all purposes
of this Amended and Restated Trust Agreement and any such modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust Agreement and
any modification, amendment or supplement, respectively.
"TRUST COMMON SECURITIES CERTIFICATE" means a certificate evidencing
ownership of Trust Common Securities, substantially in the form attached as
Exhibit B.
"TRUST COMMON SECURITIES PURCHASE AGREEMENT" means the Trust Common
Securities Purchase Agreement dated as of __________________ between the Trust
and the Depositor, as the same may be amended from time to time.
"TRUST COMMON SECURITY" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $____________and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in force and
effect as of the date of execution of this Trust Agreement; provided, however,
that in the event the Trust Indenture Act of 1939 is succeeded by another
statute or is amended after such date, "Trust Indenture Act" shall mean such
successor statute or the Trust Indenture Act of 1939, as so amended, to the
extent such successor statute or amendment is applicable to this Trust Agreement
or to the actions of the Depositor or the Property Trustee under or pursuant to
this Trust Agreement.
"TRUST PREFERRED SECURITIES CERTIFICATE" means a certificate evidencing
ownership of Trust Preferred Securities, substantially in the form attached as
Exhibit C.
"TRUST PREFERRED SECURITY" means a preferred undivided beneficial interest
in the assets of the Trust, having a Liquidation Amount of $___________ and
having the rights provided therefor in this Trust Agreement, including the right
to receive Distributions and a Liquidation Distribution as provided herein.
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"TRUST PROPERTY" means (a) the [Subordinated] Debt Securities, (b) any cash
on deposit in, or owing to, the Payment Account, (c) all proceeds and rights in
respect of the foregoing and (d) any other property and assets for the time
being held or deemed to be held by the Property Trustee pursuant to the trusts
of this Trust Agreement.
"TRUST SECURITIES CERTIFICATE" means any one of the Trust Common Securities
Certificates or the Trust Preferred Securities Certificates.
"TRUST SECURITY" means any one of the Trust Common Securities or the Trust
Preferred Securities.
"TRUSTEES" means, collectively, the Property Trustee and the Delaware
Trustee.
"UNDERWRITERS" has the meaning specified in the Underwriting Agreement.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated as of
_________, among the Trust, the Depositor and the Underwriters, as the same may
be amended from time to time.
ARTICLE II
CONTINUATION OF THE TRUST
Section 201. NAME. The Trust continued hereby shall be known as "Union
Electric Capital Trust __," as such name may be modified from time to time by
the Administrators following written notice to the Holders of Trust Securities
and the Trustees, in which name the Administrators and the Trustees may engage
in the transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued.
Section 202. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS.
The address of the Delaware Trustee in the State of Delaware is ______________ ,
_________________________, ________________________,__________________________ ,
____________________, Attention: Corporate Trustee Administration Department, or
such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Holders and the Depositor. The principal
executive office of the Trust is in care of
________________________________________________________________________.
Section 203. INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES. The Property Trustee acknowledges receipt in trust from the Depositor
in connection with this Trust Agreement of the sum of $_____________, which
constitutes the initial Trust Property. The Depositor shall pay all
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 204. ISSUANCE OF THE TRUST PREFERRED SECURITIES. The Depositor and
the Trust executed and delivered the Underwriting Agreement as of _____________,
pursuant to the Original Trust Agreement. Contemporaneously with the execution
and delivery
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of this Trust Agreement, an Administrator, on behalf of the Trust, shall by
manual or facsimile signature execute in accordance with Section 503 and the
Property Trustee shall authenticate in accordance with Section 503 and deliver
to the Underwriters, Trust Preferred Securities Certificates, registered in the
names requested by the Underwriters, in an aggregate amount of_________________
Trust Preferred Securities having an aggregate Liquidation Amount of
$__________________ against receipt of the aggregate purchase price of such
Trust Preferred Securities of $_______________, by the Property Trustee.
If the Underwriters exercise their option to purchase all or any portion of
an additional ____________ Trust Preferred Securities pursuant to the terms of
the Underwriting Agreement, then an Administrator, on behalf of the Trust, shall
by manual or facsimile signature execute in accordance with Section 503 and the
Property Trustee shall authenticate in accordance with Section 503 and deliver
to the Underwriters, additional Trust Preferred Securities Certificates,
registered in the names requested by the Underwriters, in an aggregate amount of
up to _______________ additional Trust Preferred Securities having an aggregate
Liquidation Amount of up to $_______________________, against receipt of the
aggregate purchase price of such additional Trust Preferred Securities of up to
$_________________ by the Property Trustee.
The certificates of authentication to be executed by the Property Trustee
shall be substantially in the forms as set forth on Exhibits B and C attached
hereto.
Section 205. ISSUANCE OF THE TRUST COMMON SECURITIES; SUBSCRIPTION AND
PURCHASE OF [SUBORDINATED] DEBT SECURITIES. Contemporaneously with the execution
and delivery of this Trust Agreement, an Administrator, on behalf of the Trust,
shall by manual or facsimile signature execute or cause to be executed in
accordance with Section 503 and the Property Trustee shall authenticate in
accordance with Section 503 and shall deliver to the Depositor Trust Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of ______ Trust Common Securities having an aggregate
Liquidation Amount of $___________ against receipt of the aggregate purchase
price of such Trust Common Securities of $_________ by the Property Trustee.
Contemporaneously therewith, an Administrator, on behalf of the Trust, shall
subscribe for and purchase from the Depositor the [Subordinated] Debt
Securities, registered in the name of the Property Trustee and having an
aggregate principal amount equal to $_________, and, in satisfaction of the
purchase price for such [Subordinated] Debt Securities, the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor the sum of $_________,
(being the sum of the amounts delivered to the Property Trustee pursuant to (i)
the second sentence of Section 204, and (ii) the first sentence of this Section
205) and receive on behalf of the Trust such [Subordinated] Debt Securities.
If the Underwriters exercise their option to purchase additional Trust
Preferred Securities pursuant to the terms of the Underwriting Agreement, then
an Administrator, on behalf of the Trust, shall by manual or facsimile signature
execute in accordance with Section 503 and the Property Trustee shall
authenticate and deliver to the Depositor additional Trust Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
up to ______ additional Trust Common Securities having an aggregate Liquidation
Amount of up to $_______ against receipt of the aggregate purchase price of such
additional Trust Common Securities of up to $________ by the Property Trustee.
Contemporaneously therewith, an
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Administrator, on behalf of the Trust, shall subscribe for and purchase from the
Depositor the [Subordinated] Debt Securities, registered in the name of the
Property Trustee and having an aggregate principal amount of up to $_______,
and, in satisfaction of the purchase price for such [Subordinated] Debt
Securities, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor an aggregate amount equal to the sum of the amounts delivered to the
Property Trustee pursuant to (i) the third sentence of Section 204, and (ii) the
third sentence of this Section 205.
Section 206. DECLARATION OF TRUST. The exclusive purposes and functions of
the Trust are to (a) issue and sell Trust Securities and use the proceeds from
such sale to acquire the [Subordinated] Debt Securities, and (b) engage in only
those other activities necessary, convenient or incidental thereto. The
Depositor hereby appoints the Trustees as trustees of the Trust, to have all the
rights, powers and duties to the extent set forth herein, and the Trustees
hereby accept such appointment. The Property Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Trust and the Holders. The Depositor hereby
appoints the Administrators, with such Administrators having all rights, powers
and duties set forth herein with respect to accomplishing the purposes of the
Trust, and the Administrators hereby accept such appointment; provided, however,
that it is the intent of the parties hereto that such Administrators shall not
be trustees or, to the fullest extent permitted by law, fiduciaries with respect
to the Trust and this Trust Agreement shall be construed in a manner consistent
with such intent. The Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrators set forth
herein. The Delaware Trustee shall be one of the trustees of the Trust for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the
Delaware Business Trust Act and for taking such actions as are required to be
taken by a Delaware trustee under the Delaware Business Trust Act.
Section 207. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS. (a) The
Trustees and the Administrators shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section and in accordance with the following
provisions (i) and (ii), the Trustees and the Administrators shall act as
follows:
(i) Each Administrator, acting jointly or singly, shall:
(1) comply with the Underwriting Agreement regarding the
issuance and sale of the Trust Securities;
(2) assist in compliance with the Securities Act,
applicable State securities or blue sky laws, and the Trust Indenture
Act;
(3) assist in the listing of the Trust Preferred
Securities upon such securities exchange or exchanges as shall be
determined by the Depositor, with the registration of the Trust
Preferred Securities under the Exchange Act, if required, and the
preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing;
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(4) execute the Trust Securities on behalf of the Trust in
accordance with this Trust Agreement;
(5) execute and deliver an application for a taxpayer
identification number for the Trust;
(6) assist in the filing with the Commission, at such time
as determined by the Depositor, any registration statement under the
Securities Act, including any amendments thereto;
(7) unless otherwise required by the Trust Indenture Act,
execute on behalf of the Trust any documents that the Administrators
have the power to execute pursuant to this Trust Agreement, including
without limitation, the Debt Purchase Agreement and the Trust Common
Securities Purchase Agreement and send notices (other than notices of
default) and other information regarding the Trust Securities and the
[Subordinated] Debt Securities to the Holders in accordance with this
Trust Agreement; and
(8) take any action incidental to the foregoing as
necessary or advisable to give effect to the terms of this Trust
Agreement.
(ii) The Property Trustee shall have the power and authority to
act on behalf of the Trust with respect to the following matters:
(1) the establishment of the Payment Account;
(2) the receipt of the [Subordinated] Debt Securities;
(3) the receipt and collection of interest, principal and
any other payments made in respect of the [Subordinated] Debt
Securities in the Payment Account;
(4) the distribution, through the Paying Agent, of amounts
owed to the Holders in respect of the Trust Securities;
(5) the exercise of all of the rights, powers and
privileges of a holder of the [Subordinated] Debt Securities (subject
to the terms of this Trust Agreement);
(6) the sending of notices of default and other
information regarding the Trust Securities and the [Subordinated] Debt
Securities to the Holders in accordance with this Trust Agreement;
(7) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(8) to the extent provided in this Trust Agreement, the
winding-up of the affairs of and liquidation of the Trust and the
preparation,
14
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware; and
(9) after an Event of Default (other than under paragraph
(b), (c), (d), or (e) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee), comply with
the provisions of this Trust Agreement and take any action to give
effect to the terms of this Trust Agreement and protect and conserve
the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular
Holder);
PROVIDED, HOWEVER, that nothing in this Section 207(a)(ii) shall require the
Property Trustee to take any action that is not otherwise required in this Trust
Agreement.
(iii) the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the Administrators as set forth in
Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees or Administrators acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, neither the Trustees nor the
Administrators shall (i) acquire any investments or engage in any activities not
authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Holders, except as expressly provided herein,
(iii) take any action that would cause the Trust to become taxable other than as
a grantor trust for United States Federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt, or (v) take or consent
to any action that would result in the placement of a Lien on any of the Trust
Property. The Property Trustee shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust Property adverse to
the interest of the Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Trust Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation, execution and filing with the Commission
of a registration statement on the appropriate form under the Securities
Act with respect to the Trust Preferred Securities;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or part of the Trust
Preferred Securities and the determination of any and all such acts, other
than actions that must be taken by or on behalf of the Trust, and the
advice to the Administrators of actions they must take on behalf of the
Trust, and the preparation for execution and filing of any documents to be
executed and filed by the Trust or on behalf of the Trust, as the Depositor
deems
15
necessary or advisable in order to comply with the applicable laws of any
such States in connection with the sale of the Trust Preferred Securities;
(iii) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the Trust
Preferred Securities; and
(iv) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrators and the Property Trustee are authorized and directed to conduct
the affairs of the Trust and to operate the Trust so that the Trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act, and will not be taxable other than as a grantor trust
for the United States Federal income tax purposes and so that the [Subordinated]
Debt Securities will be treated as indebtedness of the Depositor for United
States Federal income tax purposes. In this connection, the Administrators, the
Property Trustee and the Holders of Trust Common Securities are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Trust Agreement, that the Administrators, Property Trustee and Holders
of Trust Common Securities determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not adversely affect in
any material respect the interests of the holders of the Outstanding Trust
Preferred Securities. In no event shall the Administrators or the Trustees be
liable to the Trust or the Holders for any failure to comply with this Section
that results from a change in law or regulations or in the interpretation
thereof. It is understood that (i) by performing its duties and obligations as
are specifically set forth in this Trust Agreement, the Property Trustee shall
be deemed to have complied with the provisions of the first sentence of this
Section 207(d) and (ii) nothing in this Section 207(d) shall require the
Property Trustee to take any actions other that those specifically required by
this Trust Agreement to be taken by it.
Section 208. ASSETS OF TRUST. The assets of the Trust shall consist solely
of the Trust Property.
Section 209. TITLE TO TRUST PROPERTY. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Trust and the Holders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 301. PAYMENT ACCOUNT. (a) On or prior to the Closing Date, the
Property Trustee shall establish the Payment Account. The Property Trustee and
its agents shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive
16
benefit of the Holders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the [Subordinated] Debt Securities.
Amounts held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTION; REDEMPTION
Section 401. DISTRIBUTIONS. (a) The Trust Securities represent undivided
beneficial interests in the Trust Property, and Distributions (including of
Additional Amounts) will be made on the Trust Securities at the rate and on the
dates that payments of interest (including of Additional Interest) are made on
the [Subordinated] Debt Securities. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative
and will accumulate whether or not there are funds of the Trust available
for the payment of Distributions. Distributions shall accumulate from
__________, 20__, and, except in the event (and to the extent) that the
Depositor exercises its right to defer the payment of interest on the
[Subordinated] Debt Securities pursuant to the Indenture, shall be payable
quarterly in arrears on __________, ________, _________, and ________ of
each year, commencing on _________, 20__. If any date on which a
Distribution is otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day (without any additional Distributions
or other payment in respect of any such delay), with the same force and
effect as if made on the date on which such payment was originally payable
(each date on which distributions are payable in accordance with this
Section 401(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to Distributions
payable at a rate of ____% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any period less than a
full Distribution period shall be computed on the basis of a 360-day year
of twelve 30-day months and the actual number of days elapsed in a partial
month in a period. Distributions payable for each full Distribution period
will be computed by dividing the rate per annum by four. The amount of
Distributions payable for any period shall include any Additional Amounts
in respect of such period.
(iii) So long as no Debt Event of Default has occurred and is
continuing, the Depositor has the right under the Indenture to defer the
payment of interest on the [Subordinated] Debt Securities at any time and
from time to time for a period not exceeding 20 consecutive quarterly
periods (an "Extension Period"), during which Extension Periods the
Depositor shall have the right to make partial payments of interest on any
Interest Payment Date (as defined in the Indenture) and at the end of which
the Depositor shall pay all interest then accrued and unpaid, provided that
no
17
Extension Period may extend beyond ____________________or end on a day
other than an Interest Payment Date. As a consequence of any such deferral,
quarterly Distributions on the Trust Securities by the Trust will also be
deferred (and the amount of Distributions to which Holders of the Trust
Securities are entitled will accumulate additional Distributions thereon at
a rate of _______% per annum, compounded quarterly from the relevant
payment date for such Distributions, computed on the basis of a 360-day
year of twelve 30-day months and the actual days elapsed in a partial month
in such period). Additional Distributions payable for each full
Distribution period will be computed by dividing the rate per annum by
four. The term "Distributions" as used in Section 401 shall include any
such additional Distributions provided pursuant to this Section
401(a)(iii).
(iv) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand
and available in the Payment Account for the payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities at the close of business on the
relevant record date, which shall be at the close of business on the fifteenth
day (whether or not a Business Day) next preceding the relevant Distribution
Date.
Section 402. REDEMPTION. (a) On each Debt Redemption Date and on the stated
maturity of the [Subordinated] Debt Securities, the Trust will be required to
redeem a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number or CUSIP numbers of the Trust Preferred
Securities affected;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accumulate on and after said date,
except as provided in Section 402(e) below; and
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(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust in issuing the Trust Securities may use "CUSIP" or
"private placement" numbers (if then generally in use), and, if so, the Property
Trustee shall indicate the "CUSIP" or "private placement" numbers of the Trust
Securities in notices of redemption and related materials as a convenience to
Holders; provided, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Trust Securities
or as contained in any notice of redemption and related material.
(d) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the applicable proceeds from the
contemporaneous redemption of [Subordinated] Debt Securities. Redemptions of the
Trust Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Redemption Price.
(e) If the Trust gives a notice of redemption in respect of any Trust
Preferred Securities, then, by 10:00 a.m., New York City time, on the Redemption
Date, the Depositor shall deposit sufficient funds with the Property Trustee to
pay the Redemption Price. If such deposit has been made, then by 12:00 noon, New
York City time, on the Redemption Date, subject to Section 402(c), the Property
Trustee will, with respect to Trust Preferred Securities held in global form,
irrevocably deposit with the Depositary for such Trust Preferred Securities, to
the extent available therefor, funds sufficient to pay the applicable Redemption
Price and will give such Depositary irrevocable instructions and authority to
pay the Redemption Price to the Holders of the Trust Preferred Securities. With
respect to Trust Preferred Securities that are not held in global form, the
Property Trustee, subject to Section 402(c), will irrevocably deposit with the
Paying Agent, to the extent available therefor, funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Trust Preferred Securities upon surrender of their Trust Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then, upon the date of such deposit, all rights of
Holders holding Trust Securities so called for redemption will cease, except the
right of such Holders to receive the Redemption Price and any Distribution
payable in respect of the Trust Securities on or prior to the Redemption Date,
but without interest, and such Trust Securities will cease to be Outstanding. In
the event that any date on which any applicable Redemption Price is payable is
not a Business Day, then payment of the applicable Redemption Price payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accumulate, as set forth in
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Section 401 and in accordance with the continued accrual of interest on the
[Subordinated] Debt Securities, from the Redemption Date originally established
by the Trust for such Trust Securities to the date such applicable Redemption
Price is actually paid, in which case the actual payment date will be the date
fixed for redemption for purposes of calculating the applicable Redemption
Price.
(f) Subject to Section 403(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Trust Securities to be redeemed shall be allocated
pro rata to the Trust Common Securities and the Trust Preferred Securities based
on the relative Liquidation Amounts of such classes. The amount of premium, if
any, paid by the Depositor upon the redemption of all or any part of the
[Subordinated] Debt Securities to be repaid or redeemed on a Redemption Date
shall be allocated to the redemption pro rata of the Trust Preferred Securities
and the Trust Common Securities. The particular Trust Preferred Securities to be
redeemed shall be selected by the Property Trustee by such method (including,
without limitation, on a pro rata basis based on their respective Liquidation
Amounts or by lot) as the Property Trustee shall deem fair and appropriate,
which may provide for the selection for redemption of portions (equal to $_____
or integral multiples thereof) of the Liquidation Amount of Trust Preferred
Securities of a denomination larger than $______, not more than 60 days prior to
the Redemption Date from the Outstanding Trust Preferred Securities not
previously called for redemption, or if the Trust Preferred Securities are then
held in the form of a Global Trust Preferred Security, by the Depositary in
accordance with the customary procedures for the Depositary. In any such
proration, the Property Trustee shall make such adjustments so that any Trust
Preferred Security to be redeemed shall, after such redemption, be in an
authorized denomination. The Property Trustee shall promptly notify the
Securities Registrar in writing of the Trust Preferred Securities selected for
redemption and, in the case of any Trust Preferred Securities selected for
partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Trust Preferred Securities shall
relate, in the case of any Trust Preferred Securities redeemed or to be redeemed
only in part, to the portion of the aggregate Liquidation Amount of Trust
Preferred Securities that has been or is to be redeemed.
Section 403. SUBORDINATION OF TRUST COMMON SECURITIES. (a) Payment of
Distributions (including Additional Amounts, if applicable) on, the Redemption
Price of, and the Liquidation Distribution in respect of, the Trust Securities,
as applicable, shall be made, subject to Section 402(e), pro rata among the
Trust Common Securities and the Trust Preferred Securities based on the
Liquidation Amount of such Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date, any Event of Default resulting from a Debt
Event of Default in Section 801(a) or 801(b) of the Indenture shall have
occurred and be continuing, no payment of any Distribution (including any
Additional Amounts) on, Redemption Price of, or Liquidation Distribution in
respect of, any Trust Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Trust Common Securities, shall
be made unless payment in full in cash of all accumulated and unpaid
Distributions (including any Additional Amounts) on all Outstanding Trust
Preferred Securities for all Distribution periods terminating on or prior
thereto, or, in the case of payment of the Redemption Price, the full amount of
such Redemption Price on all Outstanding Trust Preferred Securities then called
for redemption, or in the case of payment of the Liquidation Distribution, the
full amount of such
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Liquidation Distribution on all Outstanding Trust Preferred Securities, shall
have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Amounts) on, or the Redemption Price of,
or Liquidation Distribution in respect of, Trust Preferred Securities then due
and payable. The existence of an Event of Default does not entitle the Holders
of Trust Preferred Securities to accelerate the maturity thereof.
(b) In the case of the occurrence of any Event of Default resulting
from any Debt Event of Default, the Holder of the Trust Common Securities shall
be deemed to have waived any right to act with respect to any such Event of
Default under this Trust Agreement until the effects of all such Events of
Default with respect to the Trust Preferred Securities have been cured, waived
or otherwise eliminated. Until all such Events of Default under this Trust
Agreement with respect to the Trust Preferred Securities have been so cured,
waived or otherwise eliminated, the Property Trustee shall act solely on behalf
of the Holders of the Trust Preferred Securities and not on behalf of the Holder
of the Trust Common Securities, and only the Holders of the Trust Preferred
Securities will have the right to direct the Property Trustee to act on their
behalf.
Section 404. PAYMENT PROCEDURES. Payments of Distributions (including any
Additional Amounts) in respect of the Trust Preferred Securities shall be made
by check mailed to the address of the Person entitled thereto as such address
shall appear on the Securities Register or, if the Trust Preferred Securities
are held by the Depositary, such Distributions shall be made to the Depositary
in immediately available funds, which will credit the relevant accounts on the
applicable Distribution Dates. Payments in respect of the Trust Common
Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Holder of the Trust Common Securities.
Section 405. TAX RETURNS AND REPORTS. The Administrators shall prepare (or
cause to be prepared), at the Depositor's expense, and file all United States
Federal, State and local tax and information returns and reports required to be
filed by or in respect of the Trust. In this regard, the Administrators shall
(a) prepare and file (or cause to be prepared and filed) all Internal Revenue
Service forms required to be filed in respect of the Trust in each taxable year
of the Trust and (b) prepare and furnish (or cause to be prepared and furnished)
to each Holder all Internal Revenue Service forms required to be provided by the
Trust. The Administrators shall provide the Depositor and the Property Trustee
with a copy of all such returns and reports promptly after such filing or
furnishing. The Property Trustee shall comply with United States Federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Holders under the Trust Securities.
On or before December 15 of each year during which any Trust Preferred
Securities are outstanding, the Administrators shall furnish to the Paying Agent
such information as may be reasonably requested by the Property Trustee in order
that the Property Trustee may prepare the information which it is required to
report for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to
Section 6049 of the Code. Such information shall include the amount of original
issue discount includable in income for each outstanding Trust Preferred
Security during such year, if any.
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Section 406. PAYMENT OF TAXES, DUTIES, ETC. of the Trust. Upon receipt
under the [Subordinated] Debt Securities of Additional Sums and the written
direction of any of the Administrators, the Property Trustee shall promptly pay
any taxes, duties or governmental charges of whatsoever nature (other than
withholding taxes) imposed on the Trust by the United States or any other taxing
authority.
Section 407. PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT ACTIONS. Any
amount payable hereunder to any Holder of Trust Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder has directly
received pursuant to Section 808 of the Indenture or Section 513 of this Trust
Agreement.
Section 408. LIABILITY OF THE HOLDER OF TRUST COMMON SECURITIES. The Holder
of Trust Common Securities shall be liable for the debts and obligations of the
Trust as set forth in [Section 907] of the Indenture regarding allocation of
expenses.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 501. INITIAL OWNERSHIP. Upon the creation of the Trust and the
contribution by the Depositor pursuant to Section 203 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
Outstanding, the Depositor shall be the sole beneficial owner of the Trust.
Section 502. THE TRUST SECURITIES CERTIFICATES. (a) The Trust Preferred
Securities Certificates shall be issued in fully registered form in
denominations of $_____ Liquidation Amount or integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the Trust by manual
or facsimile signature of at least one Administrator. Trust Securities
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits of
this Trust Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Holder, and shall be entitled to the rights and subject to the
obligations of a Holder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 505.
(b) Upon their original issuance, Trust Preferred Securities
Certificates representing Global Trust Preferred Securities shall be issued in
the form of one or more Global Trust Preferred Securities Certificates
registered in the name of Cede as the Depositary's nominee and deposited with or
on behalf of the Depositary for credit by the Depositary to the respective
accounts of the Owners thereof (or such other accounts as they may direct).
Except as set forth herein, record ownership of the Global Trust Preferred
Securities may be transferred, in whole or in part, only to the Depositary,
another nominee of Depositary or to a successor of the Depositary or its
nominee.
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(c) A single Trust Common Securities Certificate representing the
Trust Common Securities shall be issued to the Depositor in the form of a
definitive Trust Common Securities Certificate.
Section 503. EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES. At
the Closing Time, and on the date, if any, on which the Underwriters exercise
their option to purchase additional Trust Preferred Securities pursuant to the
terms of the Underwriting Agreement, as applicable, an Administrator shall cause
Trust Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 204 and 205, to be executed on behalf of the Trust and delivered to the
Property Trustee and upon such delivery the Property Trustee shall authenticate
such Trust Securities Certificates and deliver such Trust Securities
Certificates upon the written order of the Trust, executed by an Administrator
thereof, without further corporate action by the Depositor, in authorized
denominations. Only such Trust Securities Certificates as shall bear thereon a
certificate of authentication substantially in the form provided for herein
executed by the Property Trustee by manual signature of an authorized officer
thereof shall be entitled to the benefits of this Trust Agreement or be valid or
obligatory for any purpose.
Section 504. GLOBAL TRUST PREFERRED SECURITIES. (a) The Global Trust
Preferred Securities issued under this Trust Agreement shall be registered in
the name of the nominee of the Depositary and delivered to the Property Trustee
as custodian therefor, and such Global Trust Preferred Security shall constitute
a single Trust Preferred Security for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision of this Trust Agreement,
except as contemplated by the provisions of paragraph (c) below, unless the
terms of a Global Trust Preferred Security expressly permit such Global Trust
Preferred Security to be exchanged in whole or in part for individual Trust
Preferred Securities, a Global Trust Preferred Security may be transferred, in
whole but not in part and in the manner provided in Section 505, only to a
nominee of the Depositary for such Global Trust Preferred Security, or to the
Depositary, or to a successor Depositary for such Global Trust Preferred
Security selected or approved by the Depositor, or to a nominee of such
successor Depositary.
(c) (1) If at any time the Depositary for a Global Trust
Preferred Security notifies the Depositor that it is unwilling or unable to
continue as the Depositary for such Global Trust Preferred Security or if at any
time the Depositary for the Trust Preferred Securities shall no longer be
eligible or in good standing under the Exchange Act, or other applicable statute
or regulation, the Depositor shall appoint a successor Depositary with respect
to such Global Trust Preferred Security. If a successor Depositary for such
Global Trust Preferred Security is not appointed by the Depositor within 90 days
after the Depositor receives such notice or becomes aware of such ineligibility,
an Administrator will execute, and the Property Trustee will authenticate and
deliver, Trust Preferred Securities in the form of definitive certificates of
like tenor and terms ("Definitive Trust Preferred Securities") in a Liquidation
Amount equal to the Liquidation Amount of the Global Trust Preferred Security in
exchange for such Global Trust Preferred Security. Such Definitive Trust
Preferred Securities will be issued in the form of a Trust Preferred Securities
Certificate or Certificates to and registered in the name of such Person or
Persons as are specified by the Depositary.
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(2) The Trust may at any time and in its sole discretion
determine that the Trust Preferred Securities issued or issuable in
the form of one or more Global Trust Preferred Securities shall no
longer be represented by such Global Trust Preferred Security or
Securities. In any such event an Administrator will execute, and the
Property Trustee will authenticate and deliver without service charge
to each Person specified by the Depositary a Trust Preferred
Securities Certificate of like tenor in a Liquidation Amount equal to
the Liquidation Amount of such Global Trust Preferred Security, or the
aggregate Liquidation Amount of such Global Trust Preferred
Securities, in exchange for such Global Trust Preferred Security or
Securities.
(3) [If specified by the Trust with respect to a Global
Trust Preferred Security, the Depositary for such Global Trust
Preferred Security may surrender such Global Trust Preferred Security
in exchange in whole or in part for Definitive Trust Preferred
Securities on such terms as are acceptable to the Trust and such
Depositary. Thereupon an Administrator shall execute, and the Property
Trustee shall authenticate and deliver, without service charge, (A) to
each Person specified by such Depositary a Trust Preferred Securities
Certificate of like tenor and of any authorized denomination as
requested by such Person in aggregate Liquidation Amount equal to and
in exchange for the Liquidation Amount of such Person's Global Trust
Preferred Security; and (B) to such Depositary a new Global Trust
Preferred Security in an authorized denomination equal to the
difference, if any, between the Liquidation Amount of the surrendered
Global Trust Preferred Security and the aggregate Liquidation Amount
of Trust Preferred Securities delivered to Holders thereof.]
(4) In any exchange provided for in any of the preceding
three subparagraphs, an Administrator shall execute and the Property
Trustee shall authenticate and deliver Trust Preferred Securities
Certificates in authorized denominations. Upon the exchange of the
entire Liquidation Amount of a Global Trust Preferred Security for
Definitive Trust Preferred Securities, such Global Trust Preferred
Security shall be canceled by the Property Trustee. Except as provided
in the immediately preceding subparagraph, Definitive Trust Preferred
Securities issued in exchange for a Global Trust Preferred Security
pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Trust
Preferred Security, acting pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Property
Trustee. Provided that the Depositor and the Property Trustee have so
agreed, the Property Trustee shall deliver a Trust Preferred
Securities Certificate to the Persons in whose names the Trust
Preferred Securities are so to be registered.
(5) Any endorsement of a Global Trust Preferred Security to
reflect the Liquidation Amount thereof, or any increase or decrease in
such Liquidation Amount, or changes in the rights of Holders of
Outstanding Trust Preferred Securities represented thereby shall be
made in such manner and by such Person or Persons as shall be
specified in or pursuant to any applicable letter
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of representations or other arrangement entered into with, or
procedures of, the Depositary with respect to such Global Trust
Preferred Security. Subject to the provisions of Section 503, the
Property Trustee shall deliver and redeliver any such Global Trust
Preferred Security in the manner and upon instructions given by the
Person or Persons specified in or pursuant to any applicable letter of
representations or other arrangement entered into with, or procedures
of, the Depositary with respect to such Global Trust Preferred
Security.
(6) The Depositary or, if there be one, its nominee, shall
be the Holder of a Global Trust Preferred Security for all purposes
under this Trust Agreement; and beneficial owners with respect to such
Global Trust Preferred Security shall hold their interests pursuant to
applicable procedures of such Depositary. The Depositor, the Property
Trustee and the Trust Preferred Security Registrar shall be entitled
to deal with such Depositary for all purposes of this Trust Agreement
relating to such Global Trust Preferred Security (including the
payment of any Distributions and the giving of instructions or
directions by or to the beneficial owners of such Global Trust
Preferred Security) as the sole Holder of such Global Trust Preferred
Security and shall have no obligations to the beneficial owners
thereof (including any direct or indirect participants in such
Depositary). None of the Depositor, the Property Trustee, any Paying
Agent or the Securities Registrar shall have any responsibility or
liability for any aspect of the records relating to or payments made
on account of beneficial ownership interests of a Global Trust
Preferred Security in or pursuant to any applicable letter of
representations or other arrangement entered into with, or procedures
of, the Depositary with respect to such Global Trust Preferred
Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Section 505. REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY; CERTAIN
TRANSFERS AND EXCHANGES; TRUST PREFERRED SECURITIES CERTIFICATES. The Property
Trustee shall keep or cause to be kept at its Corporate Trust Office a register
or registers for the purpose of registering Trust Preferred Securities
Certificates and transfers and exchanges of Trust Preferred Securities
Certificates in which the registrar and transfer agent with respect to the Trust
Preferred Securities (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Trust
Preferred Securities Certificates and Trust Common Securities Certificates
(subject to Section 511 in the case of Trust Common Securities Certificates) and
registration of transfers and exchanges of Trust Preferred Securities
Certificates as herein provided. Such register is herein sometimes referred to
as the "Securities Register." The Property Trustee is hereby appointed
Securities Registrar for the purpose of registering Trust Preferred Securities
and transfers of Trust Preferred Securities as herein provided.
Upon surrender for registration of transfer of any Trust Preferred Security
Certificate at the offices or agencies of the Property Trustee designated for
that purpose an Administrator shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Trust Preferred Securities Certificates of any
authorized denominations of like tenor and aggregate Liquidation Amount and
bearing such restrictive legends as may be required by this Trust Agreement.
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At the option of the Holder, Trust Preferred Securities Certificates may be
exchanged for other Trust Preferred Securities Certificates of any authorized
denominations, of like tenor and aggregate Liquidation Amount and bearing such
restrictive legends as may be required by this Trust Agreement, upon surrender
of the Trust Preferred Securities to be exchanged at such office or agency.
Whenever any Trust Preferred Securities are so surrendered for exchange, an
Administrator shall execute and the Property Trustee shall authenticate and
deliver the Trust Preferred Securities that the Holder making the exchange is
entitled to receive.
All Trust Preferred Securities Certificates issued upon any transfer or
exchange of Trust Preferred Securities shall be the valid obligations of the
Trust, evidencing the same debt, and entitled to the same benefits under this
Trust Agreement, as the Trust Preferred Securities Certificates surrendered upon
such transfer or exchange.
Every Trust Preferred Securities Certificate presented or surrendered for
transfer or exchange shall (if so required by the Property Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Property Trustee and the Securities Registrar, duly executed
by the Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange of
Trust Preferred Securities, but the Property Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Trust Preferred Securities.
Neither the Trust nor the Property Trustee shall be required, pursuant to
the provisions of this Section, (x) to issue, register the transfer of or
exchange any Trust Preferred Security during a period beginning at the opening
of business 15 days before the day of selection for redemption of Trust
Preferred Securities pursuant to Article IV and ending at the close of business
on the day of mailing of the notice of redemption, or (y) to register the
transfer of or exchange any Trust Preferred Security so selected for redemption
in whole or in part, except, in the case of any such Trust Preferred Security to
be redeemed in part, any portion thereof not to be redeemed.
None of the Trust, the Property Trustee, the Delaware Trustee, any Paying
Agent or the Securities Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Trust Preferred Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 506. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrators such security or indemnity as may be required
by them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide purchaser,
the Administrators, or any one of them, on behalf of the Trust shall execute and
make available for delivery, and the Property Trustee shall authenticate, in
26
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Securities Certificate, a new Trust Securities Certificate of like class, tenor
and denomination.
Notwithstanding the foregoing, in case any such mutilated, destroyed, lost
or stolen Trust Securities Certificate has become or is about to become due and
payable, the Trust, in its discretion (by an Administrator) may, instead of
issuing a new Trust Securities Certificate, pay such Trust Securities
Certificate.
In connection with the issuance of any new Trust Securities Certificate
under this Section, the Administrators or the Securities Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to this Section
shall constitute conclusive evidence of an undivided beneficial interest in the
assets of the Trust corresponding to that evidenced by the lost, stolen or
destroyed Trust Securities Certificate, as if originally issued, whether or not
the lost, stolen or destroyed Trust Securities Certificate shall be found at any
time.
The provisions of this Section 506 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement of
mutilated, destroyed, lost or stolen Trust Securities Certificates.
Section 507. PERSONS DEEMED HOLDERS. Prior to due presentment of a Trust
Preferred Securities Certificate for registration of transfer, the Trustees, the
Administrators or the Securities Registrar shall treat the Person in whose name
any Trust Securities are issued as the owner of such Trust Securities for the
purpose of receiving Distributions and for all other purposes whatsoever
(subject to the record date provisions hereof), and none of the Trustees, the
Administrators nor the Securities Registrar shall be bound by any notice to the
contrary.
Section 508. ACCESS TO LIST OF HOLDERS' NAMES AND ADDRESSES. Semiannually,
not later than _______________ and _______________ in each year, commencing with
the year 200_, and at such other times as the Property Trustee may request in
writing, the Depositor shall furnish or cause to be furnished to the Property
Trustee information as to the names and addresses of the Holders, and the
Property Trustee shall preserve such information and similar information
received by it in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and in such manner
as shall be required by the Trust Indenture Act; provided, however, that no such
list need be furnished so long as the Property Trustee shall be the Securities
Registrar. Every holder of Trust Securities by receiving and holding the same,
agrees with the Depositor and the Property Trustee that neither the Depositor
nor the Property Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Trust Securities in accordance with Section 312
of the Trust Indenture Act, or any successor section of such Act, regardless of
the source from which such information was derived, and that the Property
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trustee Indenture Act, or any
successor section of such Act.
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Section 509. MAINTENANCE OF OFFICE OR AGENCY. The Property Trustee shall
designate, with the consent of the Administrators, which consent shall not be
unreasonably withheld, an office or offices or agency or agencies where Trust
Preferred Securities Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trustees in
respect of the Trust Securities Certificates may be served. The Property Trustee
initially designates its Corporate Trust Office [___________________________],
Attention: Corporate Trustee Administration Department, as its corporate trust
office for such purposes. The Property Trustee shall give prompt written notice
to the Depositor, the Administrators and to the Holders of any change in the
location of the Securities Register or any such office or agency.
Section 510. APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
Distributions to Holders from the Payment Account and shall report the amounts
of such Distributions to the Property Trustee and the Administrators. Any Paying
Agent shall have the revocable power to withdraw funds from the Payment Account
solely for the purpose of making the Distributions referred to above. The
Property Trustee may revoke such power and remove any Paying Agent in its sole
discretion. The Paying Agent shall initially be the Property Trustee. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Administrators, and the Property Trustee. In the
event that the Property Trustee shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Property Trustee shall appoint a successor (which shall be a bank or trust
company) that is reasonably acceptable to the Administrators to act as Paying
Agent. Such successor Paying Agent or any additional Paying Agent appointed by
the Property Trustee shall execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the Holders
in trust for the benefit of the Holders entitled thereto until such sums shall
be paid to such Holders. The Paying Agent shall return all unclaimed funds to
the Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The provisions
of Sections 801, 803 and 806 herein shall apply to the Bank also in its role as
Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Trust Agreement to the Paying Agent shall include any co-paying agent
chosen by the Property Trustee unless the context requires otherwise.
Section 511. OWNERSHIP OF TRUST COMMON SECURITIES BY DEPOSITOR. At each
Closing Time, the Depositor shall acquire and retain beneficial and record
ownership of the Trust Common Securities. Neither the Depositor nor any
successor Holder of the Trust Common Securities may transfer less than all the
Trust Common Securities, and the Depositor or any such successor Holder may
transfer the Trust Common Securities only (i) in connection with a consolidation
or merger of the Depositor into another entity or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section 1101 of the Indenture, or (ii) to an
Affiliate of the Depositor in compliance with applicable law (including the
Securities Act and applicable State securities and blue sky laws); provided that
any such transfer shall be subject to the condition that the transferor shall
have obtained (A) either a ruling from the Internal Revenue Service or an
unqualified written opinion addressed to the Trust and delivered to the Trustees
of nationally recognized independent tax counsel experienced in such matters to
the effect that such transfer will not (1) cause the Trust to
28
be treated as issuing a class of interests in the Trust differing from the class
of interests represented by the Trust Common Securities originally issued to the
Depositor, (2) result in the Trust acquiring or disposing of, or being deemed to
have acquired or disposed of, an asset, or (3) result in or cause the Trust to
be treated as anything other than a grantor trust for United States Federal
income tax purposes and (B) an unqualified written opinion addressed to the
Trust and delivered to the Trustees of a nationally recognized independent
counsel experienced in such matters that such transfer will not cause the Trust
to be an "investment company" or controlled by an "investment company" that is
required to be registered under the Investment Company Act. To the fullest
extent permitted by law, any attempted transfer of the Trust Common Securities,
other than as set forth in the immediately preceding sentence, shall be void.
The Administrators shall cause each Trust Common Securities Certificate issued
to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN
COMPLIANCE WITH APPLICABLE LAW AND SECTION 511 OF THE TRUST AGREEMENT."
Section 512. NOTICES TO DEPOSITARY. To the extent that a notice or other
communication to the Holders is required under this Trust Agreement, with
respect to Trust Preferred Securities represented by Global Trust Preferred
Securities Certificates, the Administrators and the Trustees shall give all such
notices and communications specified herein to be given to the Depositary, and
shall have no obligations to the Owners.
Section 513. RIGHTS OF HOLDERS. (a) The legal title to the Trust Property
is vested exclusively in the Property Trustee (in its capacity as such) in
accordance with Section 209, and the Holders shall not have any right or title
therein other than the undivided beneficial ownership interest in the assets of
the Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or similar rights and
when issued and delivered to Holders against payment of the purchase price
therefor, as provided herein, will be fully paid and nonassessable by the Trust.
Except as otherwise provided in Section 408, the Holders of the Trust
Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
(b) For so long as any Trust Preferred Securities remain Outstanding,
if, upon a Debt Event of Default, the Debt Trustee fails or the holders of not
less than 33% in principal amount of the outstanding [Subordinated] Debt
Securities fail to declare the principal of all of the [Subordinated] Debt
Securities to be immediately due and payable, the Holders of at least 33% in
Liquidation Amount of the Trust Preferred Securities then Outstanding shall have
such right to make such declaration by a notice in writing to the Property
Trustee, the Depositor and the Debt Trustee.
At any time after such a declaration of acceleration with respect to
the [Subordinated] Debt Securities has been made and before a judgment or decree
for payment of the money due has been obtained by the Debt Trustee as provided
in the Indenture, the Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities, by written notice to the
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Property Trustee, the Depositor and the Debt Trustee, may rescind and annul such
declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debt Trustee a
sum sufficient to pay
(1) all overdue installments of interest on all of the
[Subordinated] Debt Securities,
(2) any accrued Additional Interest on all of the
[Subordinated] Debt Securities,
(3) the principal of any [Subordinated] Debt Securities
which have become due otherwise than by such declaration of
acceleration and interest and Additional Interest thereon at the rate
borne by the [Subordinated] Debt Securities, and
(4) all sums paid or advanced by the Debt Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Debt Trustee and the Property Trustee, their agents
and counsel; and
(ii) all Debt Events of Default, other than the non-payment of
the principal of the [Subordinated] Debt Securities which has become due
solely by such acceleration, have been cured or waived as provided in
Section 813 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Trust
Preferred Securities may, on behalf of the Holders of all the Trust Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debt Trustee) or a
default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
[Subordinated] Debt Security. No such rescission shall affect any subsequent
default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Trust
Preferred Securities all or part of which is represented by Global Trust
Preferred Securities, a record date shall be established for determining Holders
of Outstanding Trust Preferred Securities entitled to join in such notice, which
record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided,
that, unless such declaration of acceleration, or rescission and annulment, as
the case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day which is 90 days after
such record date, such notice of declaration of acceleration, or rescission and
annulment, as the case may be, shall automatically and without further action by
any Holder be canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after
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expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 513(b).
(c) For so long as any Trust Preferred Securities remain Outstanding,
to the fullest extent permitted by law and subject to the terms of this Trust
Agreement and the Indenture, upon a Debt Event of Default specified in [Section
801(a) or 801(b)] of the Indenture, any Holder of Trust Preferred Securities
shall have the right to institute a proceeding directly against the Depositor,
pursuant to [Section 808] of the Indenture, for enforcement of payment to such
Holder of the principal amount of or interest on [Subordinated] Debt Securities
having an aggregate principal amount equal to the aggregate Liquidation Amount
of the Trust Preferred Securities of such Holder (a "Direct Action"). Except as
set forth in Sections 513(b) and 513(c), the Holders of Trust Preferred
Securities shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the [Subordinated] Debt
Securities.
The holders of a Majority in Liquidation Amount of the Trust Preferred
Securities at the time Outstanding shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred on the Property
Trustee with respect to the Trust Preferred Securities; provided, however, that,
the Property Trustee shall have the right to decline to follow any such
direction if the Property Trustee being advised by counsel determines that the
action so directed may not lawfully be taken, or if the Property Trustee in good
faith shall determine that the proceedings so directed would be illegal or
involve it in personal liability or be unduly prejudicial to the rights of
Holders of Trust Preferred Securities not parties to such direction, and
provided further that nothing in this Trust Agreement shall impair the right of
the Property Trustee to take any action deemed proper by the Property Trustee
and which is not inconsistent with such direction by such Holders.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
Section 601. LIMITATIONS ON HOLDER'S VOTING RIGHTS. (a) Except as provided
in this Trust Agreement and in the Indenture and as otherwise required by law,
no Holder of Trust Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and management of the
Trust or the obligations of the parties hereto, nor shall anything herein set
forth or contained in the terms of the Trust Securities Certificates be
construed so as to constitute the Holders from time to time as members of an
association.
(b) So long as any [Subordinated] Debt Securities are held by the
Property Trustee on behalf of the Trust, the Property Trustee shall not (i)
direct the time, method and place of conducting any proceeding for any remedy
available to the Debt Trustee, or execute any trust or power conferred on the
Property Trustee with respect to such [Subordinated] Debt Securities, (ii) waive
any past default that may be waived under [Section 813] of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of all
the [Subordinated] Debt Securities shall be due and payable or (iv) consent to
any amendment,
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modification or termination of the Indenture or the [Subordinated] Debt
Securities, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Trust Preferred Securities, provided, however, that
where a consent under the Indenture would require the consent of each holder of
[Subordinated] Debt Securities affected thereby, no such consent shall be given
by the Property Trustee without the prior written consent of each Holder of
Trust Preferred Securities. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of Trust Preferred
Securities, except by a subsequent vote of the Holders of Trust Preferred
Securities. Subject to Section 803, the Property Trustee shall notify all
Holders of the Trust Preferred Securities of any notice of default received with
respect to the [Subordinated] Debt Securities. In addition to obtaining the
foregoing approvals of the Holders of the Trust Preferred Securities, prior to
taking any of the foregoing actions, the Property Trustee shall, at the expense
of the Depositor, obtain an Opinion of Counsel experienced in such matters to
the effect that such action will not cause the Trust to be taxable other than as
a grantor trust for United States Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trust otherwise proposes to effect, (i) any action that would adversely
affect in any material respect the interests, powers, preferences or special
rights of the Trust Preferred Securities, whether by way of amendment to the
Trust Agreement or otherwise, or (ii) the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Trust Securities as a class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority in Liquidation
Amount of the Trust Preferred Securities; except as otherwise provided in
Section 1002(c). Notwithstanding any other provision of this Trust Agreement, no
amendment to this Trust Agreement may be made if, as a result of such amendment,
it would cause the Trust to be taxable other than as a grantor trust for United
States Federal income tax purposes.
Section 602. NOTICE OF MEETINGS. Notice of all meetings of the Holders,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1008, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
Section 603. MEETINGS OF HOLDERS. (a) A meeting of any class of Holders may
be called at any time and from time to time pursuant to this Article VI to make,
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Trust Agreement to be made, given or
taken by Holders.
(b) The Property Trustee, by giving notice as provided in Section 602,
may at any time call a meeting of Holders for any purpose specified in
subsection (a) of this Section, to be held at such time and at such place in the
__________________________, as the Property Trustee shall determine, or, with
the approval of the Administrators, at any other place. If the Property Trustee
shall have been requested to call a meeting of the Holders of Trust Preferred
Securities by the Holders of 33% in aggregate Liquidation Amount of all Trust
Preferred Securities, for any purpose specified in subsection (a) of this
Section, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Property Trustee
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shall not have given the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Holders of Trust Preferred Securities in the
Liquidation Amount above specified, as the case may be, may determine the time
and the place in the ____________________, or in such other place as shall be
determined or approved by the Administrators, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in this
subsection (b). The Administrators or the Property Trustee may, at any time in
their discretion, call a meeting of Holders of Trust Preferred Securities to
vote on any matters as to which Holders are entitled to vote.
(c) Any meeting of Holders shall be valid without notice if the
Holders of all Outstanding Trust Securities, Trust Common Securities or Trust
Preferred Securities, as the case may be, are present in person or by proxy and
if representatives of the Depositor, the Trust and the Property Trustee are
present, or if notice is waived in writing before or after the meeting by such
Holders, or by such of them as are not present at the meeting in person or by
proxy, and by the Depositor, the Trust and the Property Trustee.
(d) To be entitled to vote at any meeting of Holders of Trust
Securities, a Person shall be (a) a Holder of one or more Outstanding Trust
Securities, Trust Common Securities or Trust Preferred Securities, as the case
may be, or (b) a Person appointed by an instrument in writing as proxy for such
Holder or Holders by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Trust Securities shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Property Trustee and its counsel, any representatives of the Trust and
its counsel and any representatives of the Depositor and its counsel.
(e) The Persons entitled to vote at least a Majority in Liquidation
Amount of the Outstanding Trust Securities with respect to which a meeting shall
have been called as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders of such Trust Securities; provided,
however, that if any action is to be taken at such meeting which this Trust
Agreement expressly provides may be taken by the Holders of a specified
percentage, which is less than a Majority in Liquidation Amount, of such
Outstanding Trust Securities, considered as one class, the Persons entitled to
vote such specified percentage in Liquidation Amount of such Outstanding Trust
Securities, considered as one class, shall constitute a quorum. In the absence
of a quorum within one hour of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of such Trust Securities,
be dissolved. In any other case the meeting may be adjourned for such period as
may be determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Except as provided by Section 604(e), notice of the reconvening of any
meeting adjourned for more than 30 days shall be given as provided in subsection
(b) of this Section not less than ten days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
Liquidation Amount of the Outstanding Trust Securities which shall constitute a
quorum.
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(f) Except as limited by [Section 1202] of the Indenture, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders of a Majority in Liquidation Amount of the Outstanding Trust
Securities, Trust Common Securities or Trust Preferred Securities, as the case
may be, with respect to which such meeting shall have been called, considered as
one class; provided, however, that, except as so limited, any resolution with
respect to any action which this Trust Agreement expressly provides may be taken
by the Holders of a specified percentage, which is less than a Majority in
Liquidation Amount, of such Outstanding Trust Securities, considered as one
class, may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in Liquidation Amount of such Outstanding Trust
Securities, considered as one class.
(g) Any resolution passed or decision taken at any meeting of Holders
of Trust Securities, Trust Common Securities or Trust Preferred Securities, as
the case may be, duly held in accordance with this Section shall be binding on
all such Holders, whether or not present or represented at the meeting.
Section 604. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS. (a) Attendance at meetings of Holders may
be in person or by proxy; and, to the extent permitted by law, any such proxy
shall remain in effect and be binding upon any future Holder of the Trust
Securities with respect to which it was given unless and until specifically
revoked by the Holder or future Holder of such Trust Securities before being
voted.
(b) Notwithstanding any other provisions of this Trust Agreement, the
Property Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders in regard to proof of the holding of such Trust
Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of Trust
Securities shall be proved in the manner specified in Section 608 and the
appointment of any proxy shall be proved in the manner specified in Section 608.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 608 or other proof.
(c) The Property Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Administrators or by Holders as provided in Section 603(b), in which case
the Administrators or the Holders of Trust Securities calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a Majority in Liquidation Amount of the Outstanding
Trust Securities represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote
for each $___ Liquidation Amount of Trust Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Trust Security challenged as
34
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Trust Security or proxy.
(e) Any meeting duly called pursuant to Section 603 at which a quorum
is present may be adjourned from time to time by Persons entitled to vote a
Majority in Liquidation Amount of the Outstanding Trust Securities as may be
represented at the meeting, considered as one class; and the meeting may be held
as so adjourned without further notice.
Section 605. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote upon
any resolution submitted to any meeting of Holders shall be by written ballots
on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the aggregate Liquidation Amount and serial numbers
of the Outstanding Trust Securities with respect to which the meeting shall have
been called, held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports of all votes cast at the
meeting. A record of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 602. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Administrators, and another
to the Property Trustee to be preserved by the Property Trustee, the latter to
have attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
Section 606. HOLDER ACTION BY WRITTEN CONSENT. In lieu of a vote of Holders
at a meeting as hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action may be made,
given or taken by Holders by written instruments as provided in Section 608.
Section 607. RECORD DATE FOR VOTING AND OTHER PURPOSES. For the purposes of
determining the Holders who are entitled to notice of and to vote at any meeting
or by written consent, or to participate in any distribution on the Trust
Securities in respect of which a record date is not otherwise provided for in
this Trust Agreement, or for the purpose of any other action, the Administrators
or Property Trustee may from time to time fix a date, not more than 90 days
prior to the date of any meeting of Holders or the payment of a distribution or
other action, as the case may be, as a record date for the determination of the
identity of the Holders of record for such purposes.
Section 608. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, election, waiver or other action provided by this
Trust Agreement to be made, given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing or,
alternatively, may be embodied in and evidenced by the record of Holders voting
in favor thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders duly called and held in accordance with the provisions of
this Article VI, or a combination of
35
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Property Trustee. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Trust Security, shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 801) conclusive in favor
of the Trustees, if made in the manner provided in this Section. The record of
any meeting of Holders shall be proved in the manner provided in Section 605.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Property Trustee or the Administrator
receiving the same deems sufficient. Where such execution is by a signer acting
in a capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority.
(c) The Liquidation Amount and serial numbers of Trust Securities held
by any Person, and the date of holding the same, shall be proved by the
Securities Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind every future Holder of the
same Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustees, the
Administrators or the Trust in reliance thereon, whether or not notation of such
action is made upon such Trust Security.
(e) Until such time as written instruments shall have been delivered
to the Property Trustee with respect to the requisite percentage of Liquidation
Amount of Trust Securities for the action contemplated by such instruments, any
such instrument executed and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such Trust Securities by written notice by
such Holder or any subsequent Holder, proven in the manner in which such
instrument was proven.
(f) Trust Securities authenticated and delivered after any Act of
Holders of such Trust Securities may, and shall if required by the Property
Trustee, bear a notation in form approved by the Property Trustee as to any
action taken by such Act of Holders. If the Administrators shall so determine,
new Trust Securities, so modified as to conform, in the opinion of the Property
Trustee and the Administrators, to such action may be prepared and executed on
behalf of the Trust by an Administrator and authenticated and delivered by the
Property Trustee in exchange for such Outstanding Trust Securities.
(g) If the Trust (by the Administrators) shall solicit from Holders
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Trust (by the
36
Administrators) may, at its option, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but shall have no obligation to
do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on the
record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of the Outstanding Trust Securities
have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Trust Securities shall be computed as of the record date.
(h) If any dispute shall arise among the Holders, the Administrators
or the Trustees with respect to the authenticity, validity or binding nature of
any request, demand, authorization, direction, consent, waiver or other Act of
such Holder or Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
(i) A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Trust, any Trustee, any Administrator or any person or
entity.
Section 609. INSPECTION OF RECORDS. Upon reasonable notice to the
Administrators and the Property Trustee, the records of the Trust shall be open
to inspection by Holders during normal business hours for any purpose reasonably
related to such Holder's interest as a Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 701. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE AND THE
DELAWARE TRUSTEE. The Property Trustee and the Delaware Trustee, each severally
on behalf of and as to itself, hereby represents and warrants for the benefit of
the Depositor and the Holders that:
(a) The Property Trustee is a banking corporation with corporate trust
powers, duly organized, validly existing and in good standing under the laws of
the State of New York, with corporate trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of this
Trust Agreement.
(b) The execution, delivery and performance by the Property Trustee of
this Trust Agreement has been duly authorized by all necessary corporate action
on the part of the Property Trustee; and this Trust Agreement has been duly
executed and delivered by the Property Trustee, and constitutes a legal, valid
and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
37
(c) The execution, delivery and performance of this Trust Agreement by
the Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Property Trustee.
(d) At the Closing Time, the Property Trustee has not knowingly
created any Liens on the Trust Securities.
(e) No consent, approval or authorization of, or registration with or
notice to, any New York State or Federal banking authority governing the banking
or trust powers of the Property Trustee is required for the execution, delivery
or performance by the Property Trustee, of this Trust Agreement.
(f) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with corporate trust
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Trust Agreement.
(g) The execution, delivery and performance by the Delaware Trustee of
this Trust Agreement has been duly authorized by all necessary corporate action
on the part of the Delaware Trustee; and this Trust Agreement has been duly
executed and delivered by the Delaware Trustee, and constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' right
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(h) The execution, delivery and performance of this Trust Agreement by
the Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or registration with or
notice to any Delaware, State or Federal banking authority governing the trust
powers of the Delaware Trustee is required for the execution, delivery or
performance by the Delaware Trustee, of this Trust Agreement.
(j) The Delaware Trustee is an entity which has its principal place of
business in the State of Delaware.
Section 702. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR. The Depositor
hereby represents and warrants for the benefit of the Holders that:
(a) the Trust Securities Certificates issued at the Closing Time on
behalf of the Trust have been duly authorized and will have been duly and
validly executed, and, subject to payment therefor, issued and delivered by the
Trust pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement, and the Holders will be, as of each such
date, entitled to the benefits of this Trust Agreement; and
38
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Administrators or Trustees on behalf of the Trust) under the
laws of the State of Delaware or any political subdivision thereof in connection
with the execution, delivery and performance by either the Property Trustee or
the Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
THE TRUSTEES; THE ADMINISTRATORS
Section 801. CERTAIN DUTIES AND RESPONSIBILITIES. (a) The duties and
responsibilities of the Trustees and the Administrators shall be as provided by
this Trust Agreement, and, in the case of the Property Trustee, by the Trust
Indenture Act, and no implied covenants or obligations shall be read into this
Trust Agreement against the Property Trustee. For purposes of Sections 315(a)
and 315(c) of the Trust Indenture Act, the term "default" is hereby defined as
an Event of Default which has occurred and is continuing.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each Holder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that neither the Trustees nor the
Administrators are personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any Trust
Security. This Section 801(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in the case of the
Property Trustee, in the Trust Indenture Act.
(c) The Property Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Trust Agreement. In case an Event of Default of
which a Responsible Officer of the Property Trustee has actual knowledge has
occurred (which has not been cured or waived), the Property Trustee shall
exercise such of the rights and powers vested in it by this Trust Agreement, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(d) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that prior to the
occurrence of an Event of Default and after the curing or waiving of all Events
of Default which may have occurred
(i) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Trust Agreement, and
the Property Trustee shall not be liable except for the performance of such
duties and obligations as
39
are specifically set forth in this Trust Agreement, and no implied
covenants or obligations shall be read into this Trust Agreement against
the Property Trustee; and
(ii) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property Trustee and conforming
to the requirements of this Trust Agreement; but, in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Trust Agreement.
(e) The Property Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the Property Trustee,
unless it shall be proven that the Property Trustee was negligent in
ascertaining the pertinent facts.
(f) The Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith, in accordance with the
direction of the Holders of Trust Preferred Securities pursuant to Section 513,
relating to the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee, under this Trust Agreement.
(g) No provision of this Trust Agreement shall require the Property
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity, satisfactory to
the Property Trustee in its reasonable judgment, against such risk or liability
is not reasonably assured to it.
(h) Notwithstanding anything contained in this Trust Agreement to the
contrary, the duties and responsibilities of the Property Trustee under this
Trust Agreement shall be subject to the protections, exculpations and
limitations on liability afforded to the Property Trustee under the provisions
of the Trust Indenture Act, including those provisions of such Act deemed by
such Act to be included herein.
(i) Whether or not therein expressly so provided, every provision of
this Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Property Trustee shall be subject to the provisions
of this Section.
Section 802. EVENTS OF DEFAULT; WAIVER. The Holders of a Majority in
Liquidation Amount of the Trust Preferred Securities may, on behalf of the
Holders of all the Trust Preferred Securities, waive any past Event of Default
and its consequences, except a default described in clause (b) or (c) of the
definition of "Event of Default" contained in Section 101, a default in respect
of a covenant or provision which under this Trust Agreement cannot be modified
or amended without the consent of the Holder of each Outstanding Trust Preferred
Security or a Debt Event of Default that the Holders of a Majority in
Liquidation Amount of the Trust Preferred Securities would not be entitled to
waive pursuant to Section 513(b). Upon such
40
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Trust Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
Section 803. CERTAIN NOTICES. (a) Within five Business Days after the
occurrence of any default hereunder of which the Property Trustee has knowledge
(within the meaning of Section 804(h) hereof), the Property Trustee shall give
notice thereof to the Holders in the manner and to the extent required to do so
by the Trust Indenture Act, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the character specified in
clause (d) under the subheading "Event of Default" in Section 101, no such
notice to Holders shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time, or both, would become, an Event of
Default.
(b) Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
[Subordinated] Debt Securities pursuant to the Indenture, the Property Trustee
shall transmit, in the manner and to the extent provided in Section 1008, notice
of such exercise to the Holders and the Administrators, unless such exercise
shall have been revoked.
Section 804. CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to the provisions
of Section 801 and to the applicable provisions of the Trust Indenture Act:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Depositor mentioned herein shall
be sufficiently evidenced by an Officer's Certificate, or as otherwise expressly
provided herein, and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Property
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate,
(d) the Property Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any Holder pursuant to this Trust Agreement, unless such Holder
shall have offered to the Property Trustee
41
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(f) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Property Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Property
Trustee shall determine to make such further inquiry or investigation, it shall
(subject to applicable legal requirements) be entitled to examine, during normal
business hours, the books, records and premises of the Trust and the Depositor,
personally or by agent or attorney;
(g) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Property Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder; and
(h) the Property Trustee shall not be charged with knowledge of any
default or Event of Default unless either (1) a Responsible Officer of the
Property Trustee shall have actual knowledge of the default or Event of Default
or (2) written notice of such default or Event of Default (which shall state
that such notice is a "Notice of Default" or a "Notice of an Event of Default"
hereunder, as the case may be) shall have been given to the Property Trustee by
the Depositor, any Administrator, any other obligor on Trust Preferred
Securities or by any Holder of Trust Preferred Securities.
Section 805. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The
recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees and the Administrators do
not assume any responsibility for their correctness. The Trustees and the
Administrators shall not be accountable for the use or application by the
Depositor of the proceeds of the [Subordinated] Debt Securities.
Section 806. MAY HOLD SECURITIES. Except as provided in the definition of
the term "Outstanding" in Article I, the Administrators, any Trustee or any
other agent of any Trustee or the Trust, in its individual or any other
capacity, may become the owner or pledgee of Trust Securities and, subject to
Sections 809 and 814, may otherwise deal with the Trust with the same rights it
would have if it were not an Administrator, Trustee or such other agent.
Section 807. COMPENSATION; INDEMNITY. The Depositor, as borrower, shall
(a) pay to the Trustees from time to time reasonable compensation for
all services rendered by them hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustees in accordance with any provision of
this Trust Agreement, including the costs of collection (including the
reasonable compensation and the expenses and disbursements
42
of its agents and counsel), except to the extent that any such expense,
disbursement or advance may be attributable to its negligence, willful
misconduct or bad faith; and
(c) indemnify and hold harmless each Trustee and each Administrator
(each referred to herein as an "Indemnified Person") from and against any and
all losses, demands, claims, liabilities, causes of action or expenses
(including reasonable attorney's fees and expenses) incurred by it arising out
of or in connection with the acceptance or administration of the trust or trusts
hereunder or the performance of its duties hereunder (including the reasonable
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder), except to the extent any such loss, demand, claim, liability, cause
of action or expense may be attributable to its negligence, willful misconduct
or bad faith, and assume the defense of such Indemnified Person with counsel
acceptable to such Indemnified Person, unless such Indemnified Person shall have
been advised by counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
Depositor.
No Trustee may claim any Lien on any Trust Property as a result of any
amount due pursuant to this Section.
When a Trustee incurs expenses or renders services in connection with an
Event of Default specified in clause (e) under the subheading "Event of Default"
in Section 101, the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive termination of this Trust
Agreement.
Section 808. TRUSTEES REQUIRED; ELIGIBILITY OF TRUSTEES AND ADMINISTRATORS.
(a) There shall at all times be a Property Trustee hereunder with respect to the
Trust Securities. The Property Trustee shall be
(i) a corporation organized and doing business under the laws of
the United States, any State or Territory thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $100,000,000 and subject
to supervision or examination by Federal or State authority, or
(ii) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $100,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to supervision or
examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article VIII and the
Trust Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the
43
requirements of such supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Property Trustee shall
cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article VIII.
(b) There shall at all times be one or more Administrators hereunder.
Each Administrator shall be either a natural person who is at least 21 years of
age or a legal entity that shall act through one or more persons authorized to
bind that entity. An employee, officer or Affiliate of the Depositor may serve
as an Administrator.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age and
a resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
Section 809. CONFLICTING INTERESTS. (a) If the Property Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
(b) The Guarantee, the Indenture, the Guarantee Agreement dated as of
______________ between the Depositor and ____________, as guarantee trustee,
relating to Union Electric Capital Trust __, and the Amended and Restated Trust
Agreement dated as of _________________ among the Depositor, as depositor,
______________________, as property trustee, _________________________ , as
Delaware trustee and the administrators named therein, relating to Union
Electric Capital Trust __, shall be deemed to be sufficiently described in this
Trust Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
Section 810. CO-TRUSTEES AND SEPARATE TRUSTEE. At any time or times, for
the purpose of meeting the legal requirements of any applicable jurisdiction,
the Depositor and the Property Trustee shall have power to appoint, and, upon
the written request of the Property Trustee or of the Holders of at least
thirty-three per centum (33%) in Liquidation Amount of the Trust Securities then
Outstanding, the Depositor and the Administrators shall for such purpose join
with the Property Trustee in the execution and delivery of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Property Trustee either to act as co-trustee, jointly with the Property Trustee,
or to act as separate trustee, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If the
Depositor or the Administrators do not join in such appointment within 15 days
after the receipt by them of a request so to do, or if an Event of Default shall
have occurred and be continuing, the Property Trustee alone shall have power to
make such appointment.
44
Should any written instrument or instruments from the Depositor be required
by any co-trustee or separate trustee so appointed to more fully confirm to such
co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following conditions:
(a) the Trust Securities Certificates shall be authenticated and
delivered, and all rights, powers, duties and obligations hereunder in respect
of the custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Property Trustee hereunder, shall
be exercised solely, by the Property Trustee;
(b) the rights, powers, duties and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed either
by the Property Trustee or by the Property Trustee and such co-trustee or
separate trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee;
(c) the Property Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, if a Debt Event of Default shall have occurred and be continuing,
the Property Trustee shall have power to accept the resignation of, or remove,
any such co-trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution and delivery of all instruments
and agreements necessary or proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee, or any other
such trustee hereunder; and
(e) any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
Section 811. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 812.
(b) A Trustee may resign at any time by giving written notice thereof
to the Depositor. If the instrument of acceptance by a successor Trustee
required by Section 812 shall not have been delivered to the Relevant Trustee
within 30 days after the giving of such notice of resignation, the Relevant
Trustee may petition any court of the State of Delaware for the appointment of a
successor Trustee.
45
(c) The Property Trustee or the Delaware Trustee may be removed at any
time by Act of the Holders of at least a Majority in Liquidation Amount of the
Trust Preferred Securities delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust) and to the Depositor.
(d) If at any time:
(1) a Trustee shall fail to comply with Section 809 after
written request therefor by the Depositor or by any Holder who has
been a bona fide Holder for at least six months, or
(2) a Trustee shall cease to be eligible under Section 808
and shall fail to resign after written request therefor by the
Depositor or by any such Holder, or
(3) a Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Relevant Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Relevant Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Depositor by a Board Resolution may remove the
Relevant Trustee or (y) any Holder who has been a bona fide Holder for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of the State of Delaware for the removal of the Relevant Trustee and
the appointment of a successor Relevant Trustee.
(e) If a Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of any Trustee for any cause
(other than as contemplated in clause (2) in subsection (d) of this Section),
the Depositor, by a Board Resolution, shall promptly appoint a successor
Relevant Trustee and shall comply with the applicable requirements of Section
812. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Relevant Trustee shall be appointed by
Act of the Holders of a Majority in Liquidation Amount of the Trust Preferred
Securities then Outstanding delivered to the Depositor and the retiring Trustee,
the successor Relevant Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
812, become the successor Relevant Trustee and to that extent supersede the
successor Relevant Trustee appointed by the Depositor. If no successor Relevant
Trustee shall have been so appointed by the Depositor or the Holders and
accepted appointment in the manner required by Section 812, any Holder who has
been a bona fide Holder of a Trust Preferred Security for at least six months
may, on behalf of itself and all others similarly situated, petition any court
of the State of Delaware for the appointment of a successor Relevant Trustee.
(f) So long as no event which is, or after notice or lapse of time, or
both, would become, an Event of Default shall have occurred and be continuing,
and except with respect to a Trustee appointed by Act of the Holders of a
Majority in Liquidation Amount of the Outstanding Trust Preferred Securities
pursuant to subsection (e) of this Section, if the Depositor shall have
delivered to the Relevant Trustee (i) a Board Resolution appointing a successor
46
Relevant Trustee, effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment, effective as of such date, by such
successor Relevant Trustee in accordance with Section 812, the Relevant Trustee
shall be deemed to have resigned as contemplated in subsection (b) of this
Section, the successor Relevant Trustee shall be deemed to have been appointed
by the Depositor pursuant to subsection (e) of this Section and such appointment
shall be deemed to have been accepted as contemplated in Section 812, all as of
such date, and all other provisions of this Section and Section 812 shall be
applicable to such resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Depositor or, should the Depositor fail so to act promptly,
the successor Relevant Trustee, at the expense of the Depositor, shall give
notice of each resignation and each removal of any Trustee and each appointment
of a successor Relevant Trustee by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Trust Preferred Securities
as their names and addresses appear in the Securities Register. Each notice
shall include the name of the successor Relevant Trustee and the address of its
corporate trust office.
Section 812. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of the
appointment hereunder of a successor Relevant Trustee, every such successor
Relevant Trustee so appointed with respect to the Trust Securities and the Trust
shall execute, acknowledge and deliver to the Depositor and to the retiring
Relevant Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Relevant Trustee shall become effective
and such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee; but, on the request of the Depositor or the
successor Relevant Trustee, such retiring Relevant Trustee shall, upon payment
of all sums owed to it, execute and deliver an instrument transferring to such
successor Relevant Trustee all the rights, powers and trusts of the retiring
Relevant Trustee and shall duly assign, transfer and deliver to such successor
Relevant Trustee all property and money held by such retiring Relevant Trustee
hereunder with respect to the Trust Securities and the Trust.
(b) Upon request of any such successor Relevant Trustee, the Depositor
shall execute any instruments which fully vest in and confirm to such successor
Relevant Trustee all such rights, powers and trusts referred to in subsection
(a) of this Section.
(c) No successor Relevant Trustee shall accept its appointment unless
at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article VIII.
Section 813. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of such Relevant Trustee, shall be the
successor of the Relevant Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article VIII, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto. In case any Trust Securities shall have been
47
authenticated, but not delivered, by the Relevant Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Trust Securities so authenticated
with the same effect as if such successor Relevant Trustee had itself
authenticated such Trust Securities.
Section 814. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR TRUST.
If the Property Trustee shall be or become a creditor of the Depositor or any
other obligor upon the Trust Securities (other than by reason of a relationship
described in Section 311(b) of the Trust Indenture Act), the Property Trustee
shall be subject to any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or incurred
by the Depositor for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Property Trustee
simultaneously with the creation of the creditor relationship with the Depositor
arising from the making, drawing, negotiating or incurring of the draft, xxxx of
exchange, acceptance or obligation.
Section 815. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Trust or any other obligor upon the Trust Securities or the property of the
Trust or of such other obligor or their creditors, the Property Trustee
(irrespective of whether any Distributions on the Trust Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Property Trustee shall have made any demand on the
Trust for the payment of overdue Distributions) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Property Trustee (including any claim for amounts due to the
Property Trustee under Section 807) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event that the Property Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Property Trustee any amounts due it under Section 807.
48
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 816. REPORTS BY PROPERTY TRUSTEE. (a) Not later than _________ of
each year commencing with ___________, 20__, the Property Trustee shall transmit
to all Holders in accordance with Section 1008, and to the Depositor, a brief
report dated as of the immediately preceding ________ concerning the Property
Trustee and its actions under this Trust Agreement if and as may be required
pursuant to Section 313(a) of the Trust Indenture Act.
(b) In addition the Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with the Depositor.
Section 817. REPORTS TO THE PROPERTY TRUSTEE. The Depositor and the
Administrators on behalf of the Trust shall provide to the Property Trustee such
documents, reports and information as required by Section 314 of the Trust
Indenture Act (if any) and the compliance certificate required by Section 314(a)
of the Trust Indenture Act in the form, in the manner and at the times required
by Section 314 of the Trust Indenture Act. The Depositor and the Administrators
shall annually file with the Property Trustee a certificate specifying whether
such Person is in compliance with all the terms and covenants applicable to such
Person hereunder, such compliance certificate to be delivered annually on or
before ________________ of each year beginning in ______.
Section 818. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Each of the
Depositor and the Administrators on behalf of the Trust shall provide to the
Property Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Trust Agreement that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act shall be given in the form of an Officers' Certificate.
Section 819. NUMBER OF TRUSTEES. (a) The number of Trustees shall be two.
The Property Trustee and the Delaware Trustee may be the same Person, in which
case, the number of Trustees may be one.
(b) If a Trustee ceases to hold office for any reason, a vacancy shall
occur. The vacancy shall be filled with an Trustee appointed in accordance with
Section 811.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Trustee shall not operate
to dissolve, terminate or annul the Trust or terminate this Trust Agreement.
49
Section 820. DELEGATION OF POWER. (a) Any Administrator may, by power of
attorney consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purpose of executing any documents
contemplated in Section 207(a) or making any governmental filing; and
(b) The Administrators shall have power to delegate from time to time
to such of their number the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Administrators
or otherwise as the Administrators may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the provisions of
this Trust Agreement.
Section 821. APPOINTMENT OF ADMINISTRATORS. (a) The Administrators shall be
appointed by the Holders of a Majority in Liquidation Amount of the Trust Common
Securities and may be removed by the Holders of a Majority in Liquidation Amount
of the Trust Common Securities or may resign at any time. Upon any resignation
or removal, the Depositor shall appoint a successor Administrator. Each
Administrator shall execute this Trust Agreement thereby agreeing to comply
with, and be legally bound by, all of the terms, conditions and provisions of
this Trust Agreement. If at any time there is no Administrator, the Property
Trustee or any Holder who has been a Holder of Trust Securities for at least six
months may petition any court of competent jurisdiction for the appointment of
one or more Administrators.
(b) Whenever a vacancy in the number of Administrators shall occur,
until such vacancy is filled by the appointment of an Administrator in
accordance with this Section 821, the Administrators in office, regardless of
their number (and notwithstanding any other provision of this Agreement), shall
have all the powers granted to the Administrators and shall discharge all the
duties imposed upon the Administrators by this Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision of this
Trust Agreement, in the event any Administrator who is a natural person dies or
becomes, in the opinion of the Holders of a Majority in Liquidation Amount of
the Trust Common Securities, incompetent, or incapacitated, the vacancy created
by such death, incompetence or incapacity may be filled by the remaining
Administrators, if there were at least two of them prior to such vacancy, and by
the Depositor, if there were not two such Administrators immediately prior to
such vacancy (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrators set forth in Section 808).
Section 822. DELAWARE TRUSTEE. (a) Notwithstanding any other provision of
this Trust Agreement, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Administrators or the Property Trustee described in this
Trust Agreement. The Delaware Trustee shall be a trustee for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the Delaware
Business Trust Act.
(b) It is expressly understood and agreed by the parties hereto that
in fulfilling its obligations as Delaware Trustee hereunder on behalf of the
Trust (i) any agreements or instruments executed and delivered by
_____________________________ are executed and delivered not in its individual
capacity but solely as Delaware Trustee under this Trust
50
Agreement in the exercise of the powers and authority conferred and vested in
it, (ii) each of the representations, undertakings and agreements herein made on
the part of the Trust is made and intended not as representations, warranties,
covenants, undertakings and agreements by ________________________________ in
its individual capacity but is made and intended for the purpose of binding only
the Trust, and (iii) under no circumstances shall _________________
_________________________________ be personally liable for the payment of any
indebtedness or expenses of the Trust or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Trust under this Trust Agreement, except if such breach or failure is due to any
gross negligence or willful misconduct of the Delaware Trustee.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
Section 901. DISSOLUTION UPON EXPIRATION DATE. Unless earlier dissolved,
pursuant to an Early Termination Event, the Trust shall automatically dissolve
on ____________________ (the "Expiration Date"), and thereafter the Trust
Property shall be distributed in accordance with Section 904.
Section 902. EARLY DISSOLUTION. The first to occur of any of the following
events is an "Early Termination Event," upon the occurrence of which the Trust
shall dissolve:
(a) the occurrence of the appointment of a receiver or other similar
official in any liquidation, insolvency or similar proceeding with respect to
the Depositor or all or substantially all of its property, or a court or other
governmental agency shall enter a decree or order relating to the Depositor for
relief in a voluntary or involuntary case under Chapter 7 or Chapter 11 of the
United States Bankruptcy Code or any other similar State or Federal law now or
hereafter in effect and such decree or order shall remain unstayed and
undischarged for a period of 60 days, unless the Depositor shall transfer the
Trust Common Securities as provided by Section 511, in which case this provision
shall refer instead to any such successor Holder of the Trust Common Securities;
(b) the written direction to the Property Trustee from the Holder of
the Trust Common Securities at any time to dissolve the Trust and to distribute
the [Subordinated] Debt Securities to Holders in exchange for the Trust
Preferred Securities (which direction, subject to Section 904(a), is optional
and wholly within the discretion of the Holder of the Trust Common Securities);
(c) the redemption of all of the Trust Preferred Securities in
connection with the repayment or redemption of all the [Subordinated] Debt
Securities; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
Section 903. TERMINATION. As soon as is practicable after the occurrence of
an event referred to in Section 901 or 902, and upon the completion of the
winding-up and liquidation of
51
the Trust, the Administrators and the Trustees (each of whom is hereby
authorized to take such action) shall file a certificate of cancellation with
the Secretary of State of the State of Delaware terminating the Trust and, upon
such filing, the respective obligations and responsibilities of the Trustees,
the Administrators and the Trust created and continued hereby shall terminate,
except as otherwise required by law or this Trust Agreement.
Section 904. LIQUIDATION. (a) If an Early Termination Event specified in
clause (a), (b) or (d) of Section 902 occurs or upon the Expiration Date, the
Trust shall be wound-up and liquidated by the Property Trustee as expeditiously
as the Property Trustee determines to be possible by distributing, after paying
or making reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Delaware Business Trust Act, to each
Holder a Like Amount of [Subordinated] Debt Securities, subject to Section
904(d). Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not later than 15 nor more than 45
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of [Subordinated] Debt Securities; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for [Subordinated]
Debt Securities, or if Section 904(d) applies receive a Liquidation
Distribution, as the Administrators or the Property Trustee shall deem
appropriate.
(b) Except where Section 902(c) or 904(d) applies, in order to effect
the liquidation of the Trust and distribution of the [Subordinated] Debt
Securities to Holders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 30 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of [Subordinated] Debt Securities in
exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 902(c) or 904(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) the Depositary for the Trust Preferred Securities or its
nominee, as the registered Holder of the Global Trust Preferred Securities
Certificates, shall receive a registered global certificate or certificates
representing the [Subordinated] Debt Securities to be delivered upon such
distribution with respect to Trust Preferred Securities held by the Depositary
or its nominee, and, (iii) any Trust Securities Certificates not held by the
Depositary for the Trust Preferred Securities or its nominee as specified in
clause (ii) above will be deemed to represent [Subordinated] Debt Securities
having a principal amount equal to the stated Liquidation Amount of the Trust
Securities represented thereby and bearing accrued and unpaid interest in an
amount equal to the accumulated and
52
unpaid Distributions on such Trust Securities until such certificates are
presented to the Securities Registrar for transfer or reissuance.
(d) If, notwithstanding the other provisions of this Section 904,
whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the [Subordinated] Debt Securities is
not practical, or if any Early Termination Event specified in clause (c) of
Section 902 occurs, the Trust shall be dissolved, and the Trust Property shall
be liquidated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution of the Trust, Holders
will be entitled to receive out of the assets of the Trust available for
distribution to Holders, after paying or making reasonable provision to pay all
claims and obligations of the Trust in accordance with Section 3808(e) of the
Delaware Business Trust Act, an amount equal to the aggregate of Liquidation
Amount per Trust Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution"). If, upon
any such dissolution, the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holders of the Trust Common
Securities will be entitled to receive Liquidation Distributions upon any such
dissolution, pro rata (determined as aforesaid) with Holders of Trust Preferred
Securities, except that, if a Debt Event of Default has occurred and is
continuing, the Trust Preferred Securities shall have a priority over the Trust
Common Securities as provided in Section 403.
Section 905. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE
TRUST. The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any entity, except pursuant to this Section 905
or Section 904. At the request of the Holders of the Trust Common Securities,
and with the consent of the Holders of at least a Majority in Liquidation Amount
of the Trust Preferred Securities, but without the consent of the Trustees, the
Trust may merge with or into, consolidate, amalgamate, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to a trust organized as such under the laws of any state; provided, however,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Trust Preferred Securities or (b)
substitutes for the Trust Preferred Securities other securities having
substantially the same terms as the Trust Preferred Securities (the "Successor
Trust Preferred Securities") so long as the Successor Trust Preferred Securities
have the same priority as the Trust Preferred Securities with respect to
distributions and payments upon liquidation, redemption and otherwise; (ii) a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee is appointed to hold the [Subordinated] Debt Securities; (iii)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Trust Preferred Securities (including any Successor
Trust Preferred Securities) to be downgraded by any nationally recognized
statistical rating organization; (iv) the Trust Preferred Securities or any
Successor Trust Preferred Securities are listed or quoted, or any Successor
Trust Preferred Securities will be listed or quoted upon notification of
issuance, on any national securities exchange or with another organization on
which the Trust Preferred Securities are then listed or quoted; (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Trust Preferred
53
Securities (including any Successor Trust Preferred Securities) in any material
respect; (vi) such successor entity has a purpose substantially identical to
that of the Trust; (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Property Trustee has received an
Opinion of Counsel from independent counsel experienced in such matters to the
effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights preferences
and privileges of the holders of the Trust Preferred Securities (including any
Successor Trust Preferred Securities) in any material respect, and (b) following
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, neither the Trust nor such successor entity will be required to register
as an "investment company" under the Investment Company Act; and (viii) the
Depositor or any permitted transferee to whom it has transferred the Trust
Common Securities hereunder owns all of the Trust Common Securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Trust Preferred Securities at least to the extent provided by the
Guarantee. Notwithstanding the foregoing, the Trust shall not, except with the
consent of Holders of 100% in Liquidation Amount of the Trust Preferred
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to, any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be taxable other than as a grantor trust for United States
Federal income tax purposes. Any merger or similar agreement shall be executed
by the Administrators on behalf of the Trust.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 1001. LIMITATIONS OF RIGHTS OF HOLDERS. Except as set forth in
Section 902, the bankruptcy, dissolution, termination, death or incapacity of
any Person having an interest, beneficial or otherwise, in Trust Securities
shall not operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such person or any Holder for such person, to claim
an accounting, take any action or bring any proceeding in any court for a
partition or winding-up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
Section 1002. AMENDMENT. (a) This Trust Agreement may be amended from time
to time by the Property Trustee and the Holders of a Majority in Liquidation
Amount of the Trust Common Securities, without the consent of any Holder of the
Trust Preferred Securities (i) to cure any ambiguity, correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Trust Agreement; provided, however, that such amendment shall not adversely
affect in any material respect the interests of any Holder; (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to such extent as
shall be necessary to ensure that the Trust will not be taxable other than as a
grantor trust for United States Federal income tax purposes at any time that any
Trust Securities are Outstanding or to ensure that the Trust will not be
required
54
to register as an investment company under the Investment Company Act or (iii)
in accordance with the requirements of Section 812.
(b) Except as provided in Section 1002(c) hereof, any provision of
this Trust Agreement may be amended by the Property Trustee and the Holders of a
Majority in Liquidation Amount of the Trust Common Securities with (i) the
consent of Holders of at least a Majority in Liquidation Amount of the Trust
Preferred Securities and (ii) receipt by the Trustees of an Opinion of Counsel
to the effect that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment will not affect the Trust's being
taxable as a grantor trust for United States Federal income tax purposes or the
Trust's exemption from status of an "investment company" under the Investment
Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder (such consent being
obtained in accordance with Section 603 or 606 hereof), this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date or
(ii) restrict the right of a Holder to institute suit for the enforcement of any
such payment on or after such date.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status as an "investment company" under the Investment Company Act or be taxable
other than as a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrators, this Trust
Agreement may not be amended in a manner which imposes any additional obligation
on the Depositor or the Administrators.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrators or the Property Trustee shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement or otherwise. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust Agreement is in
compliance with this Trust Agreement.
(h) The Administrators shall give notice to the Holders of each
amendment to this Trust Agreement; provided, however, that any failure by the
Administrators to deliver, or any defect in, such notice, shall not affect the
validity or effectiveness of any such amendment.
Section 1003. SEPARABILITY. In case any provision in this Trust Agreement
or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
55
Section 1004. GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE HOLDERS, THE TRUST, THE DEPOSITOR, THE TRUSTEES AND
THE ADMINISTRATORS SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY
SUCH LAWS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF
DELAWARE OR ANY OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE
LAW OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER,
THAT THERE SHALL NOT BE APPLICABLE TO THE HOLDERS, THE TRUST, THE DEPOSITOR, THE
TRUSTEES, THE ADMINISTRATORS OR THIS TRUST AGREEMENT ANY PROVISION OF THE LAWS
(STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS OTHER THAN
THE DELAWARE BUSINESS TRUST ACT THAT RELATE TO OR REGULATE, IN A MANNER
INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT OR GOVERNMENTAL
BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B)
AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR
EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER
GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL
OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES
TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G)
THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR LIABILITIES OR AUTHORITIES AND POWERS OF THE TRUSTEES OR THE
ADMINISTRATOR AS SET FORTH OR REFERENCED IN THIS TRUST AGREEMENT. SECTION 3540
OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE TRUST. NOTWITHSTANDING
THE FOREGOING, THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE IN
CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS AND DUTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
Section 1005. PAYMENTS DUE ON NON-BUSINESS DAY. If the date fixed for any
payment on any Trust Security shall be a day that is not a Business Day, then
such payment need not be made on such date but may be made on the next
succeeding day that is a Business Day (except as otherwise provided in Section
402(d)), with the same force and effect as though made on the date fixed for
such payment, and no Distributions shall accumulate on such unpaid amount for
the period after such date.
Section 1006. SUCCESSORS. This Trust Agreement shall be binding upon and
shall inure to the benefit of any successor to the Depositor, the Trust, the
Administrators and any Trustee, including any successor by operation of law.
Except in connection with a consolidation, merger or sale involving the
Depositor that is permitted under Article XI of the Indenture and pursuant
56
to which the assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder.
Section 1007. HEADINGS. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 1008. REPORTS, NOTICES AND DEMANDS. Any report, notice, demand or
other communication that by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Holder or the Depositor may be
given or served in writing by deposit thereof, first class postage prepaid, in
the United States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Holder of Trust Preferred Securities, to such
Holder as such Holder's name and address may appear on the Securities Register;
and (b) in the case of the Holder of Trust Common Securities or the Depositor,
to _____________________________, Attention: ____________________, Facsimile No.
_____________________ or to such other address as may be specified in a written
notice by the Depositor to the Property Trustee. Such notice, demand or other
communication to or upon a Holder shall be deemed to have been sufficiently
given or made, for all purposes, upon hand delivery, mailing or transmission.
Such notice, demand or other communication to or upon the Depositor shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Depositor.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee, the Delaware Trustee or, the Administrators shall
be given in writing addressed (until another address is published by the Trust)
as follows: (a) with respect to the Property Trustee to _______________,
__________________, Attention: Corporate Trustee Administration Department (b)
with respect to the Delaware Trustee to ___________________,
__________________________, Attention: Corporate Trustee Administration
Department; (c) with respect to the Administrators, to them at the address above
for notices to the Depositor, marked "Attention: Office of the Chief Financial
Officer" and (d) with respect to the Trust to Union Electric Capital Trust __,
c/o
Union Electric Company, _______________________________, Attention:
____________________. Such notice, demand or other communication to or upon the
Trust or the Property Trustee shall be deemed to have been sufficiently given or
made only upon actual receipt of the writing by the Trust, the Property Trustee,
or such Administrator.
Section 1009. AGREEMENT NOT TO PETITION. Each of the Trustees, the
Administrators and the Depositor agree for the benefit of the Holders that,
until at least one year and one day after the Trust has been terminated in
accordance with Article IX, they shall not file, or join in the filing of, a
petition against the Trust under any bankruptcy, insolvency, reorganization or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 1009, the Property Trustee
agrees, for the benefit of Holders, that at the expense of the Depositor, it
shall file an answer with the bankruptcy court or otherwise properly contest the
filing of such petition by the Depositor against the Trust or the commencement
of such action and raise the defense that the Depositor has agreed in writing
not to take such action and should
57
be estopped and precluded therefrom and such other defenses, if any, as counsel
for the Property Trustee or the Trust may assert. If any Trustee or
Administrator takes action in violation of this Section 1009, the Depositor
agrees, for the benefit of the Holders, that at the expense of the Depositor, it
shall file an answer with the bankruptcy court or otherwise properly contest the
filing of such petition by such Person against the Trust or the commencement of
such action and raise the defense that such Person has agreed in writing not to
take such action and should be estopped and precluded therefrom and such other
defenses, if any, as counsel for the Depositor may assert. The provisions of
this Section 1009 shall survive the termination of this Trust Agreement.
Section 1010. TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT. (a)
TRUST INDENTURE ACT; APPLICATION. (i) This Trust Agreement is subject to the
provisions of the Trust Indenture Act that are required to be a part of this
Trust Agreement and shall, to the extent applicable, be governed by such
provisions; (ii) if and to the extent that any provision of this Trust Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control; (iii)
if any provision of this Trust Agreement modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Trust Agreement as so modified or
excluded as the case may be, (iv) for purposes of this Trust Agreement, the
Property Trustee, to the extent permitted by applicable law and/or the rules and
regulations of the Commission, shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act; and (v) the application of the Trust
Indenture Act to this Trust Agreement shall not affect the nature of the Trust
Preferred Securities and the Trust Common Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
(b) DISCLOSURE INFORMATION. The disclosure of information as to the
names and addresses of the Holders of Trust Securities in accordance with
Section 312 of the Trust Indenture Act, regardless of the source from which such
information was derived, shall not be deemed to be a violation of any existing
law or any law hereafter enacted which does not specifically refer to Section
312 of the Trust Indenture Act, nor shall the Property Trustee be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
Section 1011. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND
INDENTURE. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH
TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE
GUARANTEE AND THE INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION PROVISIONS
AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE
AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS
BETWEEN THE TRUST AND SUCH HOLDER AND SUCH OTHERS.
58
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
59
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed, all as of the day and year first above written.
UNION ELECTRIC COMPANY
as Depositor
By:
---------------------------
Name:
-------------------------
Title: Chief Financial Officer
------------------------------,
as Property Trustee, and not in its
individual capacity
By:
---------------------------
Name:
--------------------------
Title: Trust Officer
-------------------------------,
as Delaware Trustee, and not
in its individual capacity
By:
---------------------------
Name:
Title:
Agreed to and Accepted by,
------------------------
Name:
------------------
Title: Administrator
------------------------
Name:
------------------
Title: Administrator
60
EXHIBIT A
[INSERT CERTIFICATE OF TRUST FILED WITH DELAWARE]
A-1
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR
IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 511 OF THE TRUST AGREEMENT
CERTIFICATE NUMBER NUMBER OF TRUST COMMON
SECURITIES
C-1 _____
($____________ AGGREGATE LIQUIDATION AMOUNT)
CERTIFICATE EVIDENCING TRUST COMMON SECURITIES
OF
UNION ELECTRIC CAPITAL TRUST __
_________% TRUST COMMON SECURITIES
(LIQUIDATION AMOUNT $______ PER TRUST COMMON SECURITY)
Union Electric Capital Trust __, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that
Union
Electric Company (the "Holder") is the registered owner of
______________________ (________ ) Trust Common Securities of the Trust
representing undivided beneficial interests in the assets of the Trust and
designated as the Union Electric Capital Trust _______% Trust Common Securities
(liquidation amount $______ per Trust Common Security) (the "Trust Common
Securities"). Except in accordance with Section 511 of the Trust Agreement (as
defined below) the Trust Common Securities are not transferable and any
attempted transfer hereof other than in accordance therewith shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Trust Common Securities are set forth in, and this certificate
and the Trust Common Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust, dated as of _______________________, as the same
may be amended from time to time (the "Trust Agreement") among
_____________________________________, as Depositor, ______________________, as
Property Trustee, __________________________________________ , as Delaware
Trustee, the Administrators named therein and the Holders of Trust Securities,
including the designation of the terms of the Trust Common Securities as set
forth therein. The Trust will furnish a copy of 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.
B-1
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Trust has executed
this certificate this ___ day of ______________, 200_.
UNION ELECTRIC CAPITAL TRUST ____
By:
---------------------------------
Administrator
CERTIFICATE OF AUTHENTICATION:
THIS IS ONE OF THE TRUST COMMON SECURITIES REFERRED TO IN THE WITHIN MENTIONED
TRUST AGREEMENT.
------------------------------------,
as Property Trustee
By:
------------------------
Authorized Officer
B-2
EXHIBIT C
[IF THE TRUST PREFERRED SECURITIES CERTIFICATE IS TO BE A GLOBAL TRUST
PREFERRED SECURITIES CERTIFICATE, INSERT:]This Trust Preferred Securities
Certificate is a Global Trust Preferred Securities Certificate within the
meaning of the Trust Agreement hereinafter referred to and is registered in the
name of the Depositary or a nominee of the Depositary. This Trust Preferred
Securities Certificate is exchangeable for Trust Preferred Securities
Certificates registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Trust Agreement and
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary, except in the limited circumstances described in the
Trust Agreement.
Unless this Trust Preferred Securities Certificate is presented by an
authorized representative of The Depositary Trust Company, a New York
corporation ("DTC"), to Union Electric Capital Trust __or its agent for
registration of transfer, exchange or payment, and any Trust Preferred
Securities Certificate issued is registered in the name of Cede & Co. or such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
NO EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL RETIREMENT ACCOUNT SUBJECT
TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE") (EACH, A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN
ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET
ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD
THIS TRUST PREFERRED SECURITIES CERTIFICATE OR ANY INTEREST HEREIN, UNLESS SUCH
PURCHASE OR HOLDING IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23,
95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH
PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS TRUST PREFERRED SECURITIES
CERTIFICATE OR ANY INTEREST HEREIN THAT IS A PLAN OR A PLAN ASSET ENTITY OR IS
PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS" WILL BE DEEMED TO
HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF THAT (A) THE PURCHASE AND
HOLDING OF THE TRUST PREFERRED SECURITIES IS COVERED BY THE EXEMPTIVE RELIEF
PROVIDED BY PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE
EXEMPTION, (B) THE DEPOSITOR AND THE ADMINISTRATORS ARE NOT "FIDUCIARIES" WITHIN
THE MEANING OF SECTION 3(21) OF ERISA AND THE REGULATIONS THEREUNDER, WITH
RESPECT TO SUCH PERSON'S INTEREST IN THE TRUST PREFERRED SECURITIES OR THE
[SUBORDINATED] DEBT SECURITIES, AND (C) IN PURCHASING THE TRUST
C-1
EXHIBIT C
PREFERRED SECURITIES SUCH PERSON APPROVES THE PURCHASE OF THE [SUBORDINATED]
DEBT SECURITIES AND THE APPOINTMENT OF THE TRUSTEES.
CERTIFICATE NUMBER AGGREGATE LIQUIDATION XXXXXX
X-0 $___________
C-2
(__________ TRUST PREFERRED SECURITIES)
CUSIP NO.____________________
CERTIFICATE EVIDENCING TRUST PREFERRED SECURITIES
OF
UNION ELECTRIC CAPITAL TRUST___
___________% TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $_____ PER TRUST PREFERRED SECURITY)
Union Electric Capital Trust __, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that
______________________ (the "Holder") is the registered owner of
_______________________ Dollars ($____________) aggregate liquidation amount of
Trust Preferred Securities of the Trust representing a preferred undivided
beneficial interest in the assets of the Trust and designated as the Union
Electric Capital Trust _________% Trust Preferred Securities (liquidation amount
$_____ per Trust Preferred Security) (the "Trust Preferred Securities"). The
Trust Preferred Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
505 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Trust Preferred Securities are set forth in, and this certificate and the Trust
Preferred Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Trust, dated as of ____________________, as the same may be amended from
time to time (the "Trust Agreement"), among ________________________________, as
Depositor, _______________________________, as Property Trustee,
___________________________________________ , as _____________ Trustee, the
Administrators named herein and the Holders of Trust Securities, including the
designation of the terms of the Trust Preferred Securities as set forth therein.
The Holder is entitled to the benefits of the Guarantee Agreement entered into
by ___________________________, a _______________________corporation, as
Guarantor, and ________________________________, as Guarantee Trustee, dated as
of ____________________ __________________________(the "Guarantee Agreement"),
to the extent provided therein. The Trust will furnish a copy of the Trust
Agreement and the
Guarantee Agreement to the Holder without charge upon written request to the
Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
2
IN WITNESS WHEREOF, one of the Administrators of the Trust has executed
this certificate this ____ day of ____________________.
UNION ELECTRIC CAPITAL TRUST __
By:
----------------------------
Name:
-------------------------
Administrator
ADMINISTRATOR
This is one of the Trust Preferred Securities referred to in the within
mentioned Trust Agreement.
--------------------------------
as Property Trustee
By:
------------------------
Authorized Signatory
3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Preferred
Security to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints _____________________________________________________
--------------------------------------------------------------------------------
agent to transfer this Trust Preferred Securities Certificate on the books of
the Trust. The agent may substitute another to act for him or her.
Date:
--------------------
Signature:
----------------------------------------------------------
(Sign exactly as your name appears on the
other side of this Trust Preferred Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
4
