Exhibit 4(a)
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AMENDED AND RESTATED
TRUST AGREEMENT
between
TEXAS UTILITIES ELECTRIC COMPANY, as Depositor
and
THE BANK OF NEW YORK
THE BANK OF NEW YORK (DELAWARE),
Xxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxx
and
Xxxxxxx Xxxxxxx, as Trustees
Dated as of _________ __, 1995
TU ELECTRIC CAPITAL II
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TU Electric Capital II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- --------------
Section 310(a)(1) . . . . . . . . . . . . . . . . 8.07
(a)(2) . . . . . . . . . . . . . . . . 8.07
(a)(3) . . . . . . . . . . . . . . . . 8.09
(a)(4) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 8.08
Section 311(a) . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . 8.13
Section 312(a) . . . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . . . . 5.07
Section 313(a) . . . . . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . . . . . . 8.14(b)
(b) . . . . . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . . . . . 8.14(a)
(d) . . . . . . . . . . . . . . . . 8.14(a), 8.14(b)
Section 314(a) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . Not Applicable
(c)(2) . . . . . . . . . . . . . . . . Not Applicable
(c)(3) . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . . . 8.01
(b) . . . . . . . . . . . . . . . . 8.02, 8.14(b)
(c) . . . . . . . . . . . . . . . . 8.01(a)
(d) . . . . . . . . . . . . . . . . 8.01, 8.03
(e) . . . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . Not Applicable
Section 317(a)(1) . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 5.09
Section 318(a) . . . . . . . . . . . . . . . . 10.10
-----------------------
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
TABLE OF CONTENTS
ARTICLE I.
Defined Terms
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . 2
ARTICLE II.
Establishment of the Trust
Section 2.01. Name . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.02. Office of the Delaware Trustee;
Principal Place of Business . . . . . . . . . . 10
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses . . . . . . . . . . . . 11
Section 2.04. Issuance of the Preferred Securities . . . . . . 11
Section 2.05. Subscription and Purchase of Debentures;
Issuance of the Common Securities . . . . . . . 11
Section 2.06. Declaration of Trust; Appointment of Additional
Administrative Trustees . . . . . . . . . . . . 11
Section 2.07. Authorization to Enter into Certain
Transactions . . . . . . . . . . . . . . . . . 12
Section 2.08. Assets of Trust . . . . . . . . . . . . . . . . . 15
Section 2.09. Title to Trust Property . . . . . . . . . . . . . 15
ARTICLE III.
Payment Account
Section 3.01. Payment Account . . . . . . . . . . . . . . . . . 16
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions . . . . . . . . . . . . . . . . . . 16
Section 4.02. Redemption . . . . . . . . . . . . . . . . . . . 17
Section 4.03. Subordination of Common Securities . . . . . . . 19
Section 4.04. Payment Procedures . . . . . . . . . . . . . . . 20
Section 4.05. Tax Returns and Reports . . . . . . . . . . . . . 20
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership . . . . . . . . . . . . . . . . 20
Section 5.02. The Trust Securities Certificates . . . . . . . . 20
Section 5.03. Execution and Delivery of Trust Securities
Certificates . . . . . . . . . . . . . . . . . 21
Section 5.04. Registration of Transfer and Exchange of
Preferred Securities Certificates . . . . . . . 21
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates . . . . . . . . . . . . 22
Section 5.06. Persons Deemed Securityholders . . . . . . . . . 22
Section 5.07. Access to List of Securityholders' Names
and Addresses . . . . . . . . . . . . . . . . . 22
Section 5.08. Maintenance of Office or Agency . . . . . . . . . 23
Section 5.09. Appointment of Paying Agent . . . . . . . . . . . 23
Section 5.10. Ownership of Common Securities by Depositor . . . 23
Section 5.11. Definitive Preferred Securities Certificates . . 24
Section 5.12. Book-Entry System . . . . . . . . . . . . . . . . 24
Section 5.13. Rights of Securityholders . . . . . . . . . . . . 25
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights . . . . . . . . . . 25
Section 6.02. Notice of Meetings . . . . . . . . . . . . . . . 26
Section 6.03. Meetings of Holders of Preferred Securities . . . 26
Section 6.04. Voting Rights . . . . . . . . . . . . . . . . . . 27
Section 6.05. Proxies, etc. . . . . . . . . . . . . . . . . . . 27
Section 6.06. Securityholder Action by Written Consent . . . . 27
Section 6.07. Record Date for Voting and Other Purposes . . . . 27
Section 6.08. Acts of Securityholders . . . . . . . . . . . . . 27
Section 6.09. Inspection of Records . . . . . . . . . . . . . . 28
ARTICLE VII.
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee . . . . . . . . . . . . . . . . 29
Section 7.02. Delaware Trustee . . . . . . . . . . . . . . . . 29
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities . . . . . . . 30
Section 8.02. Notice of Defaults . . . . . . . . . . . . . . . 31
Section 8.03. Certain Rights of Property Trustee . . . . . . . 31
Section 8.04. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . 34
Section 8.05. May Hold Securities . . . . . . . . . . . . . . . 34
Section 8.07. Certain Trustees Required; Eligibility . . . . . 35
Section 8.08. Conflicting Interests . . . . . . . . . . . . . . 36
Section 8.09. Co-Trustees and Separate Trustee . . . . . . . . 36
Section 8.10. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . . . . 38
Section 8.11. Acceptance of Appointment by Successor . . . . . 39
Section 8.12. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . 40
Section 8.13. Preferential Collection of Claims
Against Depositor or Trust . . . . . . . . . . 40
Section 8.14. Reports by Property Trustee . . . . . . . . . . . 40
Section 8.15. Reports to the Property Trustee . . . . . . . . . 41
Section 8.16. Evidence of Compliance With Conditions
Precedent . . . . . . . . . . . . . . . . . . . 41
Section 8.17. Number of Trustees. . . . . . . . . . . . . . . . 41
Section 8.18. Delegation of Power. . . . . . . . . . . . . . . 42
Section 8.19. Fiduciary Duty . . . . . . . . . . . . . . . . . 42
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date . . . . . . . . 43
Section 9.02. Early Termination . . . . . . . . . . . . . . . . 43
Section 9.03. Termination . . . . . . . . . . . . . . . . . . . 44
Section 9.04. Liquidation . . . . . . . . . . . . . . . . . . . 44
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and Assumption of
Obligations . . . . . . . . . . . . . . . . . . 46
Section 10.02. Limitation of Rights of Securityholders . . . . . 46
Section 10.03. Amendment . . . . . . . . . . . . . . . . . . . . 46
Section 10.04. Separability . . . . . . . . . . . . . . . . . . 47
Section 10.05. Governing Law . . . . . . . . . . . . . . . . . . 48
Section 10.06. Successors . . . . . . . . . . . . . . . . . . . 48
Section 10.07. Headings . . . . . . . . . . . . . . . . . . . . 48
Section 10.08. Notice and Demand . . . . . . . . . . . . . . . . 48
Section 10.09. Agreement Not to Petition . . . . . . . . . . . . 48
Section 10.10. Conflict with Trust Indenture Act . . . . . . . 49
AMENDED AND RESTATED TRUST AGREEMENT, dated as of _______, 1995,
between (i) Texas Utilities Electric Company, a Texas corporation (the
"Depositor"), (ii) The Bank of New York, a banking corporation duly
organized and existing under the laws of New York, as trustee (the
"Property Trustee" and, in its separate capacity and not in its capacity as
Property Trustee, the "Bank"), (iii) The Bank of New York (Delaware), a
banking corporation duly organized under the laws of Delaware, as Delaware
trustee (the "Delaware Trustee") (iv) Xxxxx Xxxxxxxxx, an individual,
Xxxxxxx X. Xxxxx, an individual and Xxxxxxx Xxxxxxx, an individual, each of
whose address is c/o Texas Utilities Services Inc., 0000 Xxxxx Xxxxxx,
Xxxxxx, Xxxxx 00000 (each, an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and
the Administrative Trustees referred to collectively as the "Trustees") and
(v) the several Holders, as hereinafter defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor, the Property Trustee, the Delaware
Trustee and Xxxxx Xxxxxxxxx, as the Administrative Trustee, have heretofore
duly declared and established a business trust pursuant to the Delaware
Business Trust Act by the entering into of that certain Trust Agreement,
dated as of September 28, 1995 (the "Original Trust Agreement"), and by the
execution by the Property Trustee, the Delaware Trustee and Xxxxx
Xxxxxxxxx, as Administrative Trustee and filing with the Secretary of State
of the State of Delaware of the Certificate of Trust, dated September 28,
1995, a copy of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware Trustee
and Xxxxx Xxxxxxxxx, as Administrative 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 acquisition by the Trust from the
Depositor of all of the right, title and interest in the Debentures, (ii)
the issuance of the Common Securities by the Trust to the Depositor, (iii)
the issuance of the Preferred Securities by the Trust and (iv) the
appointment of the additional Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of
the other party and for the benefit of the Securityholders, hereby amends
and restates the Original Trust Agreement in its entirety and agrees as
follows:
ARTICLE I.
Defined Terms
Section 1.01. Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Subordinated Indenture) paid by the Depositor
on a Like Amount of Debentures for such period.
"Administrative Trustee" means each of the individuals identified
as an "Administrative Trustee" in the preamble to this Trust Agreement
solely in their capacities as Administrative Trustees of the Trust formed
hereunder and not in their individual capacities, or such trustee's
successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a receiver,
liquidator, assignee, trustee sequestrator or other similar
official of such Person or of any substantial part of its
property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of the consent by it to
the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under Federal bankruptcy law or
any other applicable Federal or State law, or the consent by it
to the filing of such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Person or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors or a duly authorized
committee thereof and to be in full force and effect on the date of such
certification, and delivered to the appropriate Trustee.
"Business Day" means a day other than (x) a Saturday or a Sunday,
(y) a day on which banks in New York, New York are authorized or obligated
by law or executive order to remain closed or (z) a day on which the
Property Trustee's Corporate Trust Office or the Debenture Trustee's
principal corporate trust office is closed for business.
"Certificate of Trust" has the meaning specified in Section
2.07(d).
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Closing Date" means the First Time of Delivery as defined in the
Dealer Manager Agreement, which date is also the date of execution and
delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Common Security" means an undivided beneficial interest in the
Trust having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit C.
"Corporate Trust Office" means the principal office of the
Property Trustee located in New York, New York.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or the
Trust's Affiliates; and (b) any Holder of Trust Securities.
"Dealer Manager Agreement" means the Dealer Manager Agreement,
dated as of ____________, 1995, among the Trust, the Depositor and the
dealer manager named therein.
"Debenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Debenture Issuer" means Texas Utilities Electric Company, a
Texas corporation, in its capacity as issuer of the Debentures.
"Debenture Redemption Date" means "Redemption Date" as defined in
the Subordinated Indenture with respect to the Debentures.
"Debenture Trustee" means The Bank of New York, as trustee under
the Subordinated Indenture.
"Debentures" means the $____________ aggregate principal amount
of the Depositor's ___% Junior Subordinated Debentures, Series B, Due ____,
2030, issued pursuant to the Subordinated Indenture.
"Definitive Preferred Securities Certificates" means Preferred
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.11.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Delaware Trustee" means the banking corporation identified as
the "Delaware Trustee" in the preamble to this Trust Agreement solely in
its capacity as Delaware Trustee of the Trust formed hereunder and not in
its individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement and includes Texas Utilities Electric Company in its
capacity as Holder of the Common Securities.
"Depositary Shares" means the Texas Utilities Electric Company
Depositary Shares, Series A, each representing 1/4 share of $7.50
Cumulative Preferred Stock and Depositary Shares, Series B, each
representing 1/4 share of $7.22 Cumulative Preferred Stock.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section
9.02.
"Exchange" has the meaning specified in Section 2.07(b).
"Exchange Act" has the meaning specified in Section 2.07(c).
"Expiration Date" shall have the meaning specified in Section
9.01.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(iii) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, of any covenant or
warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in whose performance or breach is
dealt with in clause (ii) or (iii), above) and continuation of
such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the defaulting
Trustee or Trustees by the Holders of at least 10% in Liquidation
Amount of the Outstanding 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;
or
(v) the occurrence of a Bankruptcy Event with respect to the
Trust.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit C, as amended from time to time.
"Guarantee" means the Guarantee Agreement executed and delivered
by the Depositor and The Bank of New York, a New York banking corporation,
as trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee, or any employee or
agent of the Trust or its Affiliates.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment,
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation
Amount equal to the principal amount of Debentures to be contemporaneously
redeemed in accordance with the Subordinated Indenture and the proceeds of
which will be used to pay the Redemption Price of such Trust Securities
plus accumulated and unpaid Distributions to the date of such payment and
(ii) Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities of the Holder to whom such Debentures are
distributed.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a dissolution
and liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(d).
"No Recognition Opinion" has the meaning specified in Section
9.02(b).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 8.16 shall be the principal executive, financial
or accounting officer of the Depositor. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in
this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Trust, the Property Trustee, the Delaware Trustee or the
Depositor, but not an employee of the Trust, the Property Trustee, or the
Delaware Trustee or the Depositor, and who shall be reasonably acceptable
to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities
theretofore delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the Administrative
Trustees for cancellation;
(ii) Preferred Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such
Preferred Securities; provided that, if such Preferred Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of which
other Preferred Securities have been delivered pursuant to this
Trust Agreement, including pursuant to Section 5.05;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred Securities which such
Trustee knows to be so owned shall be so disregarded and (b) the foregoing
shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or
any such Affiliate. Preferred Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Administrative Trustee the pledgee's right so to
act with respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the owner of a Preferred
Securities Certificate as reflected in the Securities Register.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be [_____________].
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the Bank in
its trust department for the benefit of the Securityholders in which all
amounts paid in respect of the Debentures will be held and from which the
Property Trustee shall make payments to the Securityholders in accordance
with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means a trust originated preferred security
representing an undivided beneficial interest in the assets of the Trust
having a Liquidation Amount of $25 and having rights provided therefor in
this Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit E.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust
Agreement solely in its capacity as Property Trustee of the Trust formed
and continued hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust
Security.
"Redemption Tax Opinion" has the meaning specified in Section
9.02(b).
"Relevant Trustee" shall have the meaning specified in Section
8.10.
"Securities Depositary" shall have the meaning specified in
Section 5.12.
"Securities Register" and "Securities Registrar" shall mean the
Securities Register and Securities Registrar described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Subordinated Indenture" means the Indenture, dated as of
_________ ___, 1995, between the Depositor and the Debenture Trustee, as
trustee, as amended or supplemented from time to time.
"Tax Event" means the receipt by the Trust of an opinion of
nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, clarification of,
or change (including any announced prospective change) in, the laws or
treaties (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting
taxation, (b) any judicial decision or any official administrative
pronouncement, ruling, regulatory procedure, notice or announcement
(including any notice or announcement of intent to issue or adopt any such
administrative pronouncement, ruling, regulatory procedure or regulation)
(each, for purposes of this definition, an "Administrative Action"), or (c)
any amendment to, clarification of, or change in the official position or
the interpretation of any such Administrative Action or judicial decision
or any interpretation or pronouncement that provides for a position with
respect to such Administrative Action or judicial decision that differs
from the theretofore generally accepted position, in each case by any
legislative body, court, governmental authority or regulatory body,
irrespective of the manner in which such amendment, clarification or change
is made known, which amendment, clarification, or change is effective,
which Administrative Action is taken or which judicial decision is issued,
in each case on or after the date of issuance of the Preferred Securities,
there is more than an insubstantial risk that (i) the Trust is, or will be,
subject to United States federal income tax with respect to interest
received on the Debentures, (ii) interest payable by the Depositor on the
Debentures is not, or will not be, fully deductible by the Depositor for
United States federal income tax purposes, or (iii) the Trust is, or will
be, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Trust" means the Delaware business trust created by the Original
Trust and continued hereby and identified on the cover page to this Trust
Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including all exhibits
hereto, including, for all purposes of this Amended and Restated Trust
Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and
govern this Amended and Restated Trust Agreement and any such modification,
amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account and (iii) all proceeds and
rights in respect of the foregoing and any other property and assets for
the time being held by the Property Trustee pursuant to the trusts of this
Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
ARTICLE II.
Establishment of the Trust
Section 2.01. Name. The Trust created hereby shall be known as
"TU Electric Capital II", in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
Section 2.02. Office of the Delaware Trustee; Principal Place of
Business. The office of the Delaware Trustee in the State of Delaware is
Xxxxx Xxxx Center, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, or at such other
address in Delaware as the Delaware Trustee may designate by written notice
to the Securityholders and the Depositor. The principal place of business
of the Trust is c/o Texas Utilities Electric Company, Energy Plaza, 0000
Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000.
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges receipt in
trust from the Depositor in connection with the Original Trust Agreement of
the sum of $1, which constituted the initial Trust Property. The Depositor
shall pay organizational expenses of the Trust as they arise or shall, upon
request of any Trustee, promptly reimburse such Trustee for any such
expenses paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
Section 2.04. Issuance of the Preferred Securities. On ______,
1995 the Depositor, on behalf of the Trust, executed and delivered the
Dealer Manager Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, one of the Administrative Trustees, on
behalf of the Trust in accordance with Section 5.02, shall execute and
deliver Preferred Securities Certificates in an aggregate amount of [
] Preferred Securities having an aggregate Liquidation Amount of $[
].
Section 2.05. Subscription and Purchase of Debentures; Issuance
of the Common Securities. Contemporaneously with the execution and
delivery of this Trust Agreement, the Administrative Trustees, on behalf of
the Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Trust and having an aggregate principal
amount equal to $[ ], and, in satisfaction of the purchase price
for such Debentures, one of the Administrative Trustees, on behalf of the
Trust in accordance with Section 5.02, shall execute and deliver to the
Depositor Common Securities Certificates, registered in the name of the
Depositor, in an aggregate amount of [ ] Common Securities having an
aggregate Liquidation Amount of $[ ].
Section 2.06. Declaration of Trust; Appointment of Additional
Administrative Trustees. (a) The exclusive purposes and functions of the
Trust are (i) to issue Trust Securities to the Depositor in exchange for
the Debentures, and (ii) to engage in those 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. The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to
the conditions set forth herein for the benefit of the Securityholders.
The Trustees shall have all rights, powers and duties set forth herein and
in accordance with applicable law with respect to accomplishing the
purposes of the Trust. Anything in this Trust Agreement to the contrary
notwithstanding the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees
set forth herein. The Delaware Trustee shall be one of the Trustees of the
Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
(b) The Property Trustee, the Delaware Trustee and Xxxxx
Xxxxxxxxx, as Administrative Trustee, hereby appoint Xxxxxxx X. Xxxxx and
Xxxxxxx Xxxxxxx as additional Administrative Trustees, each of which
persons by execution of this Trust Agreement accepts such appointment.
Section 2.07. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph [(b)] of this Section and Article VIII and in accordance with the
following provisions (A) and (B), the Trustees shall have the authority to
enter into all transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied, otherwise
granted to the Trustees under this Trust Agreement, and to perform all acts
in furtherance thereof, including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(i) the issuance and sale of the Trust Securities;
(ii) without the consent of any Person, to cause the Trust to
enter into and to execute, deliver and perform on behalf of the
Trust, the Expense Agreement, the Dealer Manager Agreement and
the Certificate Depository Agreement and such other agreements as
may be necessary or desirable in connection with the consummation
hereof (such execution to be by the Administrative Trustees or
any one of them);
(iii) to qualify the Trust to do business in any jurisdiction as
may be necessary or desirable;
(iv) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(v) the filing of an Issuer Tender Offer Statement on Schedule
13E-4 and any other tender offer statement required to be filed
with the Securities and Exchange Commission and the conduct of
the Exchange Offer as described therein and in the Dealer Manager
Agreement;
(vi) the registration of the Preferred Securities under the
Securities Act of 1933, as amended, and under state securities or
blue sky laws, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(vii) the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under
the Securities Exchange Act of 1934, as amended, and the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(viii) the appointment of a Paying Agent and Securities Registrar
in accordance with this Trust Agreement;
(ix) registering transfers of the Trust Securities in
accordance with this Trust Agreement;
(x) unless otherwise determined by the Depositor or the
Property Trustee or as otherwise required by the Delaware
Business Trust Act or the Trust Indenture Act, to execute and
deliver on behalf of the Trust (either acting alone or together
with any or all of the Administrative Trustees) any documents
that the Administrative Trustees have the power to execute
pursuant to this Trust Agreement;
(xi) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of Delaware; and
(xii) the taking of any action incidental to the foregoing as
the Administrative Trustees may from time to time determine is
necessary or advisable to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of
the effect of any such action on any particular Securityholder).
(B) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(iv) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities in accordance with the terms of this
Trust Agreement;
(v) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(vii) as provided in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the execution of the
certificate of cancellation to be prepared and filed by the
Administrative Trustees with the Secretary of State of the State of
Delaware; and
(viii) the taking of any action incidental to the foregoing as
the Property Trustee may from time to time determine is necessary or
advisable to protect and conserve the Trust Property for the benefit
of the Securityholders (without consideration of the effect of any
such action on any particular Securityholder).
Subject to this Section 2.07(a)(B), the Property Trustee shall
have none of the duties, powers or authority of the Administrative Trustee
set forth in Section 2.07(a)(A) or the Depositor set forth in Section
2.07(c).
(b) So long as this Trust Agreement remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii)
take any action that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States federal income tax purposes and not as an
association taxable as a corporation, (iv) incur any indebtedness for
borrowed money or (v) take or consent to any action that would result in
the placement of a Lien on any of the Trust Property. The Trustees shall
defend all claims and demands of all Persons at any time claiming any Lien
on any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the
date of this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) to prepare for filing by the Trust with the Commission and
to execute a registration statement on Form S-4 in relation to the
Preferred Securities, including any amendments thereto;
(ii) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(iii) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) to prepare for filing by the Trust with the Commission and
to execute a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) of the
Securities Exchange Act of 1934, as amended ("Exchange Act"),
including any amendments thereto;
(v) to select the investment banker or bankers to act as
dealer managers with respect to the exchange by the Depositor of
Preferred Securities for Depositary Shares ("Exchange") and negotiate
the terms of a Dealer Manager Agreement and pricing agreement
providing for the Exchange;
(vi) to take any other actions necessary or desirable to carry
out any of the foregoing activities; and
(vii) to designate itself or an affiliate to be the Securities
Registrar.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs
of the Trust and to operate the Trust so that the Trust will not be deemed
to be an "investment company" required to be registered under the
Investment Company Act of 1940, as amended, or classified other than as a
"grantor trust" for United States federal income tax purposes and not as an
association taxable as a corporation and so that the Debentures will be
treated as indebtedness of the Depositor for United States federal income
tax purposes. In this connection, the Depositor and the Administrative
Trustees are authorized to take any action, not inconsistent with
applicable law, the certificate of trust filed with the Secretary of State
of the state of Delaware with respect to the Trust or this Trust Agreement
(the "Certificate of Trust"), that each of the Depositor and the
Administrative Trustees determines in its discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the Preferred Securities.
Section 2.08. Assets of Trust. The assets of the Trust shall
consist of the Trust Property.
Section 2.09. Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its
capacity as such) and shall be held and administered by the Property
Trustee for the benefit of the Securityholders in accordance with this
Trust Agreement.
ARTICLE III.
Payment Account
Section 3.01. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustees and the Paying Agent
appointed by the Administrative Trustee which shall initially be Texas
Utilities Services, Inc. shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of making
deposits in and withdrawals from the Payment Account in accordance with
this Trust Agreement. All monies and other property deposited or held from
time to time in the Payment Account shall be held by the Property Trustee
in the Payment Account for the exclusive benefit of the holders of Trust
Securities and for distribution as herein provided, including (and subject
to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held
in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions.
(a) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust available
for the payment of Distributions. Distributions shall accrue from
____________, 1995, and, except in the event that the Depositor exercises
its right to extend the interest payment period for the Debentures pursuant
to Section 311 of the Subordinated Indenture, shall be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year,
commencing on _________ __, 1995. If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, payment of such distribution shall be made on the
immediately preceding Business Day, in each case, with the same force and
effect as if made on such date (each date on which distributions are
payable in accordance with this Section 4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed
at a rate of __% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full quarterly
period shall be computed on the basis of twelve 30-day months and a 360-day
year and for any period shorter than a full month, on the basis of the
actual number of days elapsed. If the interest payment period for the
Debentures is extended pursuant to Section 311 of the Subordinated
Indenture, then Distributions on the Preferred Securities will be deferred
for the period equal to the extension of the interest payment period for
the Debentures and the rate per annum at which Distributions on the Trust
Securities accumulate shall be increased by an amount such that the
aggregate amount of Distributions that accumulate on all Trust Securities
during any such extended interest payment period is equal to the aggregate
amount of interest (including interest payable on unpaid interest at the
percentage rate per annum set forth above, compounded monthly) that accrues
during any such extended interest payment period on the Debentures. The
amount of Distributions payable for any period shall include the Additional
Amounts, if any.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the extent that
the Trust has funds available in the Payment Account for the payment of
such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities on the relevant record
date, which shall be 15 days prior to the relevant Distribution Date, or if
such date is not a Business Day, the next succeeding Business Day.
Section 4.02. Redemption. (a) On each Debenture Redemption
Date, the Trustee will be required to redeem a Like Amount of Trust
Securities at the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment.
(b) Notice of redemption shall be given by the Trustee by first-
class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be
redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of accumulated and
unpaid Dividends to be paid on the Redemption Date;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the total Liquidation Amount of
the particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price plus
accumulated and unpaid Distributions to the date of such payment will
become due and payable upon each such Trust Security to be redeemed
and that interest thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price plus accumulated and
unpaid Distributions to the date of such payment shall be deemed payable on
each Redemption Date only to the extent that the Trust has funds
immediately available in the Payment Account for such payment.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York time, on
the Redemption Date, subject to Section 4.02(c), the Property Trustee shall
irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price plus accumulated and unpaid Distributions to
the date of such payment and will give the Paying Agent irrevocable
instructions to pay the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment to the holders thereof upon
surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the redemption date for any
Trust Securities called for redemption shall be payable to the Holders of
such Trust Securities as they appear on the Register for the Trust
Securities on the relevant record dates for the related Distribution Dates.
If notice of redemption shall have been given and funds deposited as
required, then upon the date of such deposit, all rights of Securityholders
holding Trust Securities so called for redemption will cease, except the
right of such Securityholders to receive the Redemption Price plus
accumulated and unpaid Distributions to the date of such payment, but
without interest, and such Securities will cease to be outstanding. In the
event that any date on which any Redemption Price is payable is not a
Business Day, then payment of the Redemption Price payable on such date
plus accumulated and unpaid Distributions to such date shall be made on the
next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business
Day is in the next succeeding calendar year, payment of such distribution
shall be made on the immediately preceding Business Day, in each case, with
the same force and effect as if made on such date. In the event that
payment of the Redemption Price plus accumulated and unpaid Distributions
in respect of any Trust Securities called for redemption is improperly
withheld or refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accrue, at the then applicable rate, from the Redemption Date
originally established by the Trust for such Trust Securities to the date
such Redemption Price plus accumulated and unpaid Distributions is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price plus
accumulated and unpaid Distributions to such date.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall
be the fifteenth day prior to the Redemption Date.
(f) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated 3% to the Common
Securities and 97% to the Preferred Securities. The particular Preferred
Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee from the Outstanding Preferred
Securities not previously called for redemption, by such method as the
Property Trustee shall deem fair and appropriate and which may provide for
the selection for a redemption of portions (equal to $25 or integral
multiples thereof) of the Liquidation Amount of Preferred Securities of a
denomination larger than $25. The Property Trustee shall promptly notify
the Security Registrar in writing of the Preferred Securities selected for
redemption and, in the case of any 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 Preferred Securities shall
relate, in the case of any Preferred Securities redeemed or to be redeemed
only in part, to the portion of the Liquidation Amount of Preferred
Securities which has been or is to be redeemed.
Section 4.03. Subordination of Common Securities. (a) Payment
of Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made pro
rata based on the Liquidation Amount of the Trust Securities; provided,
however, that if on any Distribution Date or Redemption Date a Debenture
Event of Default shall have occurred and be continuing, no payment of any
Distribution (including Additional Amounts, if applicable) on, or
Redemption Price of, any Common Security, and no other payment on account
of the redemption, liquidation or other acquisition of Common Securities,
shall be made unless payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all distribution periods terminating
on or prior thereto, or in the case of payment of the Redemption Price plus
accumulated and unpaid Distributions the full amount of such Redemption
Price plus accumulated and unpaid Distributions on all Outstanding
Preferred Securities, shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including Additional Amounts,
if applicable) on, or Redemption Price of plus accumulated and unpaid
Distributions, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Debenture Event of
Default, the Holder of Common Securities will be deemed to have waived any
such Event of Default under this Trust Agreement until the effect of all
such Events of Default with respect to the Preferred Securities have been
cured, waived or otherwise eliminated. Until any such Events of Default
under the Trust Agreement with respect to the Preferred Securities have
been so cured, waived or otherwise eliminated, the Property Trustee shall
act solely on behalf of the Holders of the Preferred Securities and not the
Holder of the Common Securities, and only the Holders of the Preferred
Securities will have the right to direct the Property Trustee to act on
their behalf.
Section 4.04. Payment Procedures. Payments in respect of the
Preferred Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Register or, if
the Preferred Securities are held by a Clearing Agency, such Distributions
shall be made to the Clearing Agency, which shall credit the relevant
Persons' accounts at such Clearing Agency on the applicable distribution
dates. Payments in respect of the Common Securities shall be made in such
manner as shall be mutually agreed between the Trustee and the Holder of
the Common Securities.
Section 4.05. Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's
expense and direction, and file all United States federal, state and local
tax and information returns and reports required to be filed by or in
respect of the Trust. In this regard, the Administrative Trustees shall
(a) prepare and file (or cause to be prepared or filed) the Internal
Revenue Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
related Internal Revenue Service Form 1099, or any successor form or the
information required to be provided on such form. The Administrative
Trustees shall provide the Depositor with a copy of all such returns,
reports and schedules promptly after such filing or furnishing. The
Trustees shall comply with United States federal withholding and backup
withholding tax laws and information reporting requirements with respect to
any payments to Securityholders under the Trust Securities.
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.03 and
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are outstanding, the Depositor shall be the sole
beneficial owner of the Trust.
Section 5.02. The Trust Securities Certificates. The Trust
Securities Certificates shall be issued in denominations of $25 Liquidation
Amount and integral multiples thereof. The Trust Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile signature
of at least one Administrative Trustee. 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 Securityholder, and shall be entitled
to the rights and subject to the obligations of a Securityholder hereunder,
upon due registration of such Trust Securities Certificate in such
transferee's name pursuant to Section 5.04.
Section 5.03. Execution and Delivery of Trust Securities
Certificates. On the Closing Date, the Administrative Trustees shall cause
Trust Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.04 and 2.05, to be executed on behalf of the Trust,
delivered to or upon the written order of the Depositor signed by its
chairman of the board, any of its vice presidents or its Treasurer, without
further corporate action by the Depositor, in authorized denominations.
Section 5.04. Registration of Transfer and Exchange of Preferred
Securities Certificates. The Securities Registrar shall keep or cause to
be kept, at the office or agency maintained pursuant to Section 5.08, a
Securities Register in which, subject to such reasonable regulations as it
may prescribe, the Securities Registrar shall provide for the registration
of Preferred Securities Certificates and the Common Securities Certificates
(subject to Section 5.10 in the case of the Common Securities Certificates)
and registration of transfers and exchanges of Preferred Securities
Certificates as herein provided. The Administrative Trustees, acting
together shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to
Section 5.08, the Administrative Trustees, or any one of them, shall
execute and deliver (or shall cause The Bank of New York as its agent to
deliver), in the name of the designated transferee or transferees, one or
more new Preferred Securities Certificates in authorized denominations of a
like aggregate Liquidation Amount. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred Securities
Certificates in authorized denominations of the same class and of a like
aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.08.
Every Preferred Securities Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrative Trustees
and the Securities Registrar duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Administrative Trustees in accordance with
customary practice. The Trust shall not be required to (i) issue, register
the transfer of, or exchange any Preferred Securities during a period
beginning at the opening of business 15 calendar days before the day of
mailing of a notice of redemption of any Preferred Securities called for
redemption and ending at the close of business on the day of such mailing
or (ii) register the transfer of or exchange any Preferred Securities so
selected for redemption, in whole or in part, except the unredeemed portion
of any such Preferred Securities being redeemed in part.
No service charge shall be made for any registration of transfer
or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If (a) any mutilated Trust Securities Certificate
shall be surrendered to the Securities Registrar, or if the Securities
Registrar shall receive evidence to its satisfaction of the destruction,
loss or theft of any Trust Securities Certificate and (b) there shall be
delivered to the Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of them and
the Depositor harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser,
the Administrative Trustees, or any one of them, on behalf of the Trust
shall execute by manual or facsimile signature and the Administrative
Trustees, or any one of them, shall make available for delivery, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Trust Securities Certificate, a new Trust Securities Certificate of like
class, tenor and denomination. In connection with the issuance of any new
Trust Securities Certificate under this Section, the Administrative
Trustees or the 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 ownership interest in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Trust Securities Certificate
shall be found at any time.
Section 5.06. Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of
transfer, the Trustees and the Securities Registrar shall be entitled to
treat the Person in whose name any Trust Securities Certificate shall be
registered in the Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving distributions and for all other
purposes whatsoever, and neither the Trustee nor the Securities Registrar
shall be bound by any notice to the contrary.
Section 5.07. Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to be
furnished (x) to the Depositor, within 15 days after receipt by any
Administrative Trustee of a request therefor from the Depositor in writing
and (y) to the Property Trustee, promptly after receipt by any
Administrative Trustee of a request therefor from the Property Trustee in
writing in order to enable the Property Trustee to discharge its
obligations under this Trust Agreement, a list, in such form as the
Depositor may reasonably require, of the names and addresses of the
Securityholders as of the most recent Record Date. If Holders of Trust
Securities Certificates evidencing ownership at such time and for the
previous six months not less than 25% of the outstanding aggregate
Liquidation Amount apply in writing to any Administrative Trustee, and such
application states that the applicants desire to communicate with other
Securityholders with respect to their rights under this Trust Agreement or
under the Trust Securities Certificates and such application is accompanied
by a copy of the communication that such applicants propose to transmit,
then the Administrative Trustees shall, within five Business Days after the
receipt of such application, afford such applicants access during normal
business hours to the current list of Securityholders. Each Holder, by
receiving and holding a Trust Securities Certificate, shall be deemed to
have agreed not to hold either the Depositor or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless
of the source from which such information was derived.
Section 5.08. Maintenance of Office or Agency. The
Administrative Trustees shall maintain in the Borough of Manhattan, The
City of New York, an office or offices or agency or agencies where
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
Administrative Trustees initially designate The Bank of New York, 000
Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000 as its principal
corporate trust office for such purposes. The Administrative Trustees
shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Register or
any such office or agency.
Section 5.09. Appointment of Paying Agent. The Paying Agent
shall make distributions to Securityholders from the Payment Account and
shall report the amounts of such distributions to the Administrative
Trustees and the Property Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose
of making the distributions referred to above. The Administrative Trustees
or any one of them may revoke such power and remove the Paying Agent if the
Administrative Trustee determines in its sole discretion that the Paying
Agent shall have failed to perform its obligations under this Agreement in
any material respect. The Paying Agent shall initially be the Bank, and it
may choose any co-paying agent that is acceptable to the Administrative
Trustees and the Depositor. The Paying Agent shall be permitted to resign
upon 30 days' written notice to the Administrative Trustees and the
Depositor. In the event that [ ] shall no longer be the Paying Agent,
the Administrative Trustees shall appoint a successor that is reasonably
acceptable to the Property Trustee and the Depositor to act as Paying Agent
(which shall be a bank or trust company). The Administrative Trustees
shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the
Trustees an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if
any, held by it for payment to the Securityholders in trust for the benefit
of the Securityholders entitled thereto until such sums shall be paid to
such Securityholders. The Paying Agent shall return all unclaimed funds to
the Property Trustee and upon resignation or removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply to the
Bank 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 unless the context requires
otherwise.
Section 5.10. Ownership of Common Securities by Depositor. On
the Closing Date and on each other date provided for in Section 2.05, the
Depositor shall acquire, and thereafter retain, beneficial and record
ownership of the Common Securities. Any attempted transfer of the Common
Securities shall be void. The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
Section 5.11. Definitive Preferred Securities Certificates.
Upon initial issuance of the Preferred Securities the Definitive Preferred
Securities Certificates shall be printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to the
Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees, or any one of them. The Administrative Trustees,
or any one of them, shall execute by manual or facsimile signature the
Definitive Preferred Securities Certificates initially in accordance with
the instructions of the [Dealer/Managers]. Neither the Securities
Registrar nor any of the Administrative Trustees shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions.
Section 5.12. Book-Entry System. The Preferred Securities may
be issued in the name of a securities depository ("Securities Depository")
or a nominee therefor, and held in the custody of the Securities
Depository. In such event, a single certificate will be issued and
delivered to the Securities Depository for the Preferred Securities, in
which case the beneficial owners will not receive physical delivery of
certificates for Preferred Securities except as provided herein, all
transfers of beneficial ownership interests will be made by book-entry
only, and no investor or other party purchasing, selling or otherwise
transferring beneficial ownership of the Preferred Securities will receive,
hold or deliver any certificate for Preferred Securities. The Authority,
the Depositor, the Trustee and the Paying Agent will recognize the
Securities Depository or its nominee as the Holder of Preferred Securities
for all purposes, including notices and voting.
The Administrative Trustees, at the direction and expense of the
Depositor, may from time to time appoint a Securities Depository or a
successor thereto and enter into a letter of representation or other
agreement with such Securities Depository to establish procedures with
respect to the Preferred Securities. Any Securities Depository shall be a
Clearing Agency.
The Authority and the Trustee covenant and agree to meet the
requirements of a Securities Depository for the Preferred Securities with
respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred
Securities.
Whenever the beneficial ownership of the Preferred Securities is
determined through the books of a Securities Depository, the requirements
in this Trust Agreement of holding, delivering or transferring such
Preferred Securities shall be deemed modified to meet the requirements of
the Securities Depository with respect to actions of the Trustees, the
Depositor and the Paying Agent. Any provisions hereof permitting or
requiring delivery of such Preferred Securities shall, while such Preferred
Securities are in a Book-Entry System, be satisfied by the notation on the
books of the Securities Depository in accordance with applicable state law.
Section 5.13. Rights of Securityholders. The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its
capacity as such) in accordance with Section 2.09, and the Securityholders
shall not have any right or title therein other than an undivided
beneficial interest in the assets of the Trust conferred by their Trust
Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described
below. The Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust Agreement. The
Preferred Securities shall have no preemptive rights and when issued and
delivered to Securityholders against payment of the purchase price therefor
will be fully paid and nonassessable by the Trust.
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights. (a) Except as
provided in this Section 6.01, in Section 10.03 and as otherwise required
by law, no Holder of Preferred Securities shall have any right to vote or
in any manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee,
the Trustees shall not (i) direct the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Debenture Trustee with
respect to such Debentures, (ii) waive any past default which is waivable
under Section 813 of the Subordinated Indenture, (iii) exercise any right
to rescind or annul a declaration that the principal of all the Debentures
shall be due and payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a 66 2/3 in Liquidation Amount of the
Preferred Securities; provided, however, that where a consent under the
Subordinated Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by any Trustee
without the prior written consent of each holder of Preferred Securities.
The Trustees shall not revoke any action previously authorized or approved
by a vote of the Preferred Securities, except pursuant to a subsequent vote
of the Preferred Securities. The Property Trustees shall notify all
Holders of the Preferred Securities of any notice of default received from
the Debenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the Property
Trustees shall, at the expense of the Depositor, obtain an Opinion of
Counsel experienced in such matters to the effect that the Trust will not
be classified other than a "grantor trust" for United States federal income
tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustee otherwise proposes to effect, (i) any action that would
materially adversely affect the powers, preferences or special rights of
the 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 Preferred Securities as a class will be
entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of
at least 66 2/3 in Liquidation Amount of the outstanding Preferred
Securities. No amendment to this Trust Agreement may be made if, as a
result of such amendment, the Trust would be classified other than a
"grantor trust" for United States federal income tax purposes.
Section 6.02. Notice of Meetings. Notice of all meetings of the
Holders of Preferred Securities, stating the time, place and purpose of the
meeting, shall be given by the Administrative Trustees pursuant to Section
10.08 to each Holder of a Preferred Security, at his registered address, at
least 15 days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so considered
whether or not stated in the notice of the meeting. Any adjourned meeting
may be held as adjourned without further notice.
Section 6.03. Meetings of Holders of Preferred Securities. No
annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders
to vote on any matter upon the written request of the Holders of 25% of the
then outstanding Preferred Securities (based upon their aggregate
Liquidation Amount) and may, at any time in their discretion, call a
meeting of Holders of Preferred Securities to vote on any matters as to the
which Holders of Preferred Securities are entitled to vote.
Holders of 50% of the then outstanding Preferred Securities
(based upon their aggregate Liquidation Amount), present in person or by
proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Holders of Preferred Securities present, in person or by proxy, holding
more than the lesser of (x) 66 2/3% of the then outstanding Preferred
Securities (based upon their aggregate Liquidation Amount) held by the
Holders of then outstanding Preferred Securities present, either in person
or by proxy, at such meeting and (y) 50% of the outstanding Preferred
Securities (based upon their aggregate liquidation amount) shall constitute
the action of the Securityholders, unless this Trust Agreement requires a
greater number of affirmative votes.
Section 6.04. Voting Rights. Securityholders shall be entitled
to one vote for each $25 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
Section 6.05. Proxies, etc. At any meeting of Securityholders,
any Securityholder entitled to vote thereat may vote by proxy, provided
that no proxy shall be voted at any meeting unless it shall have been
placed on file with the Administrative Trustees, or with such other officer
or agent of the Trust as the Administrative Trustee may direct, for
verification prior to the time at which such vote shall be taken. Only
Securityholders of record shall be entitled to vote. When Trust Securities
are held jointly by several persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by
proxy, and such joint owners or their proxies so present disagree as to any
vote to be cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, or, if earlier, until eleven months after it is sent and the
burden of proving invalidity shall rest on the challenger.
Section 6.06. Securityholder Action by Written Consent. Any
action which may be taken by Securityholders at a meeting may be taken
without a meeting if Securityholders holding more than a majority of all
outstanding Trust Securities entitled to vote in respect of such action (or
such larger proportion thereof as shall be required by any express
provision of this Trust Agreement) shall consent to the action in writing
(based upon their aggregate Liquidation Amount).
Section 6.07. Record Date for Voting and Other Purposes. For
the purposes of determining the Securityholders who are entitled to notice
of and to vote at any meeting or by written consent, or to participate in
any distribution on the Trust Securities in respect of which a record date
is not otherwise provided for in this Trust Agreement, or for the purpose
of any other action, the Administrative Trustees may from time to time fix
a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.08. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
or permitted by this Trust Agreement to be given, made or taken by
Securityholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Securityholders in person or
by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to the Administrative Trustees. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Securityholders signing
such instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01) conclusive in
favor of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgements of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which any
Trustee deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind
every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees or the Trust
in reliance thereon, whether or not notation of such action is made upon
such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount
of such Trust Security or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all or any part
of such liquidation amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with
respect to the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect to
such matter.
Section 6.09. Inspection of Records. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to
the Administrative Trustees and the Property Trustee, the other records of
the Trust shall be open to inspection by Securityholders during normal
business hours for any purpose reasonably related to such Securityholder's
interest as a Securityholder.
ARTICLE VII.
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee. The Property Trustee hereby
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(a) the Property Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing under the
laws of the State of New York;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement will not violate, conflict with or
constitute a breach of the Property Trustee's charter or by-laws; and
(e) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee contemplated herein require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority
or agency under any existing Federal law governing the banking or trust
powers of the Property Trustee or under the laws of the State of New York;
Section 7.02. Delaware Trustee. The Delaware Trustee represents
and warrants for the benefit of the Depositor and the Securityholders that:
(a) the Delaware Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing under the
laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally
binding agreement of the Delaware Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(d) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement will not violate the Delaware Trustee's
charter or by-laws; and
(e) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Delaware Trustee contemplated herein require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority
or agency under any existing Federal law governing the banking or trust
powers of the Delaware Trustee or under the laws of the State of Delaware.
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee,
the Trust Indenture Act, and no implied covenants or obligations shall be
read into this Trust Agreement against any of the Trustees.
Notwithstanding the foregoing, no provision of this Trust Agreement shall
require any of the Trustees to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it. Notwithstanding anything contained in this Trust Agreement to the
contrary, the duties and responsibilities of the Property Trustee under
this Trust Agreement shall be subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust Agreement, the
Trust Indenture Act and, to the extent applicable, Rule 3A-7 under the 1940
Act, or any successor rule thereunder. Whether or not therein expressly so
provided, every provision of this Trust Agreement relating to the conduct
or affecting the liability of or affording protection to the Trustees shall
be subject to the provisions of this Section.
(b) All payments made by the Property Trustee or a Paying Agent
in respect of the Trust Securities shall be made only from the income and
proceeds from the Trust Property and only to the extent that there shall be
sufficient income or proceeds from the Trust Property to enable the
Property Trustee or Paying Agent to make payments in accordance with the
terms hereof. Each Securityholder, by its acceptance of a Trust Security,
agrees that it will look solely to the income and proceeds from the Trust
Property to the extent available for distribution to it as herein provided
and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability
in respect of any Trust Security. This Section 8.01(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust Indenture
Act.
(c) All duties and responsibilities of the Property Trustee
contained in this Trust Agreement are subject to the following:
(i) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Trust Property
shall be to deal with such property in a similar manner as the
Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to
the Property Trustee under this Trust Agreement, the Trust Indenture
Act and Rule 3a-7 thereunder;
(ii) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of
the Trust Property or the payment of any taxes or assessments levied
thereon or in connection therewith;
(iii) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor. Money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
established by the Property Trustee pursuant to Section 2.07(a)(B)(i)
and except to the extent otherwise required by law;
(iv) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
Section 8.02. Notice of Defaults. Within five Business Days
after the occurrence of any Event of Default, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.08, notice
of any default known to the Property Trustee to the Securityholders and the
Depositor, unless such default shall have been cured or waived. For the
purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
Section 8.03. Certain Rights of Property Trustee. Subject to
the provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, appraisal, bond debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) if (A) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses
of action or (B) in construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein or (C) the
Property Trustee is unsure of the application of any provision of this
Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the
Depositor requesting written instructions of the Depositor as to the
course of action to be taken. The Property Trustee shall take such
action, or refrain from taking such action, as the Property Trustee
shall be instructed in writing to take, or to refrain from taking, by
the Depositor; provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within ten Business
Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but
shall be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and
in the best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the
Administrative Trustees;
(iv) the Property Trustee may consult with counsel of its
selection and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(v) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable security or indemnity
against the costs, expenses (including reasonable attorneys' fees and
expenses) and liabilities which might be incurred by it in compliance
with such request or direction;
(vi) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, approval, bond debenture, note or other
evidence of indebtedness or other paper or document reasonably
believed by it to be genuine, unless requested in writing to do so by
one or more Securityholders, but the Property Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Property Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Depositor
personally or by agent or attorney;
(vii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Property Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder, provided
that the Property Trustee shall be responsible for its own negligence
or recklessness with respect to selection of any agent or attorney
appointed by it hereunder.
(viii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Trust Agreement;
(ix) the Property Trustee shall not be charged with knowledge
of any default or Event of Default with respect to the Trust
Securities unless either (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 shall have
been given to the Property Trustee by the Depositor, the
Administrative Trustees or by any Holder of the Trust Securities;
(x) no provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred
or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Property Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to
exercise any such right, power, duty or obligation; and no permissive
or discretionary power or authority available to the Property Trustee
shall be construed to be a duty; and
(xi) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the Property
Trustee shall have reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured to it under the
terms of this Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
(xii) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any tax or securities) (or any
rerecording, refiling or registration thereof);
(xiii) the Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction; and
(xiv) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities, which instructions may only be given
by the Holders of the same proportion and liquidation amount of the
Trust Securities as would be entitled to direct the Property Trustee
under the terms of this Trust Agreement in respect of such remedies,
right or action, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and
(iii) shall be protected in acting in accordance with such
instructions.
Section 8.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the
Trustees do not assume any responsibility for their correctness. The
Trustees make no representations as to the value or condition of the
property of the Trust or any part thereof, nor as to the validity or
sufficiency of this Trust Agreement or the Trust Securities. The Trustee
shall not be accountable for the use or application by the Trust of the
proceeds of the Trust Securities in accordance with Section 2.05.
Section 8.05. May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity,
may become the owner or pledgee of Trust Securities and may otherwise deal
with the Trust with the same rights it would have if it were not a Trustee
or such other agent.
Section 8.06. Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustees in accordance
with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, bad faith or willful misconduct; and
(3) to indemnify each Trustee for, and to hold each Trustee
harmless against, any and all loss, damage, claims, liability or
expense incurred without negligence, bad faith or willful misconduct
on its part, arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the reasonable costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the
Depositor under this Section, each of the Trustees shall have a lien prior
to the Trust Securities upon all property and funds held or collected by
such Trustee as such, except funds held in trust for the payment of
Distributions on the Trust Securities.
The provisions of this Section shall survive the termination of
this Trust Agreement.
Section 8.07. Certain Trustees Required; Eligibility. (a) There
shall at all times be a Property Trustee hereunder with respect to the
Trust Securities. The Property Trustee shall be a Person that has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Property
Trustee with respect to the Trust Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article
VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through one or
more persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with respect
to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the
State of Delaware or (ii) a legal entity with its principal place of
business in the State of Delaware that otherwise meets the
requirements of applicable Delaware law and that shall act through one
or more persons authorized to bind such entity.
Section 8.08. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property
Trustee shall either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. The Subordinated Indenture and the
Guarantee Agreement shall be deemed to be specifically described in this
Trust Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
Section 8.09. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing,
at any time or times, for the purpose of meeting the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the
Trust Property may at the time be located, the Depositor and the Property
Trustees shall have power to appoint, and upon the written request of the
Administrative Trustees, the Depositor shall for such purpose join with the
Property Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Administrative Trustees either to act as co-
trustee, jointly with the Property Trustee, of all or any part of such
Trust Property, or to act as separate trustee of any such property, in
either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the
Depositor does not join in such appointment within 15 days after the
receipt by it of a request so to do, or in case an Event of Default under
the Subordinated Indenture has occurred and is continuing, the
Administrative Trustees alone shall have power to make such appointment.
Should any written instrument from the Depositor be required by
any co-trustee or separate trustee so appointed for more fully confirming
to such co-trustee or separate trustee such property, title, right, or
power, any and all such instruments shall, on request, be executed,
acknowledged, and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(1) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees designated for
such purpose hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby conferred
or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Property Trustee
shall be incompetent or unqualified to perform such Act, in which
event such rights, powers, duties, and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section 8.09, and, in case an Event of
Default under the Subordinated Indenture has occurred and is
continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written request of
the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery, and performance of all instruments
and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this
Section.
(4) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or
any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (as the case may be, the "Relevant
Trustee") and no appointment of a successor Relevant Trustee pursuant to
this Article shall become effective until the acceptance of appointment by
the successor Relevant Trustee in accordance with the applicable
requirements of Section 8.11.
The Relevant Trustee may resign at any time with respect to the
Trust Securities by giving written notice thereof to the Securityholders.
If the instrument of acceptance by a successor Relevant Trustee required by
Section 8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the resigning
Relevant Trustee may petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee with respect to the Trust
Securities.
Unless an Event of Default shall have occurred and be continuing,
the Relevant Trustee may be removed at any time by Act of the Common
Securityholder. If an Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at such time by Act of the
Securityholders of a majority in Liquidation Amounts of the Preferred
Securities Certificates, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Relevant Trustee at a time when no Event
of Default shall have occurred and be continuing, the Common
Securityholder, by Act of the Common Securityholder delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees with respect to the Trust Securities and the Trust, and
the retiring Relevant Trustee shall comply with the applicable requirements
of Section 8.11. If the Relevant Trustee shall resign, be removed or
become incapable of continuing to act as the Relevant Trustee at a time
when an Event of Default shall have occurred and be continuing, the
Preferred Securityholders, by Act of the Preferred Securityholders of a
majority in Liquidation Amount of the Preferred Securities then outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a
successor Relevant Trustee or Trustees with respect to the Trust Securities
and the Trust, and the Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee with
respect to the Trust Securities shall have been so appointed by the Common
Securityholders or the Preferred Securityholders and accepted appointment
in the manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Relevant Trustee
with respect to the Trust Securities.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee with respect to the
Trust Securities and the Trust and each appointment of a successor Trustee
with respect to the Trust Securities and the Trust to all Securityholders
in the manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name and address of the successor
Relevant Trustee with respect to the Trust Securities and the Trust and, in
the case of the Property Trustee, the address of its Corporate Trust
Office.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes incompetent or
incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (i) the unanimous act of remaining
Administrative Trustees if there are at least two of them or (ii) otherwise
by the Depositor (with the successor in each case being an individual who
satisfies the eligibility requirement for Administrative Trustees or
Delaware Trustee, as the case may be, set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes that any
Administrative Trustee who is a natural person has become incompetent or
incapacitated, the Depositor, by notice to the remaining Trustees, may
terminate the status of such Person as an Administrative Trustee (in which
case the vacancy so created will be filled in accordance with the preceding
sentence).
Section 8.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Relevant Trustee with respect
to all Trust Securities and the Trust, every such successor Relevant
Trustee so appointed shall execute, acknowledge and deliver to the Trust
and to the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Relevant Trustee shall become effective and such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Relevant
Trustee; but, on the request of the Depositor or the successor Relevant
Trustee, such retiring Relevant Trustee shall, upon payment of its charges
by the Depositor, 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, subject, nevertheless, to the retiring
Trustee's prior lien provided for in Section 8.06.
In case of the appointment hereunder of a successor Relevant
Trustee with respect to the Trust Securities and the Trust, the retiring
Relevant Trustee and each successor Trustee with respect to the Trust
Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee
all the rights, powers, trusts and duties of the retiring Relevant Trustee
with respect to the Trust Securities and the Trust and (2) shall add to or
change any of the provisions of this Trust Agreement as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by
more than one Relevant Trustee, it being understood that nothing herein or
in such amendment shall constitute such Relevant Trustees co-trustees of
the same trust and that each such Relevant Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Relevant Trustee and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust; but, on request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall duly assign, transfer
and deliver to such successor Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the retiring
Relevant Trustee shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant Trustee all
such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless
at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article VIII.
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee or the Delaware
Trustee or any Administrative Trustee that is not a natural person may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of such Relevant Trustee,
shall be the successor of such Relevant Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this Article VIII,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto.
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee or the Delaware
Trustee shall be or become a creditor of the Depositor or the Trust (or any
other obligor upon the Debentures or the Trust Securities), the Property
Trustee or the Delaware Trustee, as the case may be, shall be subject to
the provisions of the Trust Indenture Act regarding the collection of
claims against the Depositor or Trust (or any such other obligor).
Section 8.14. Reports by Property Trustee. (a) Within 60 days
after December 31 of each year commencing with December 31, 1995 the
Property Trustee shall transmit by mail to all Securityholders, as their
names and addresses appear in the Register, and to the Depositor, a brief
report dated as of such December 31 with respect to:
(i) its eligibility under Section 8.07 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible
under said Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Trust Agreement during the
twelve-month period (or, in the case of the initial report, the
period since the Closing Date) ending with such December 31 or,
if the Property Trustee has not complied in any material respect
with such obligations, a description of such non-compliance; and
(iii) any action taken by the Property Trustee in the
performance of its duties hereunder which it has not previously
reported and which in its opinion materially affects the Trust
Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its
actions under this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each stock
exchange upon which the Trust Securities are listed, with the Commission
and with the Depositor.
Section 8.15. Reports to the Property Trustee. The Depositor
and the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information as required by
Section 314 (if any) and the compliance certificate required by Section 314
of the Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
Section 8.16. Evidence of Compliance With Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Trust Agreement
(including any covenants compliance with which constitutes a condition
precedent) that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given
by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act may
be given in the form of an Officers' Certificate.
Section 8.17. Number of Trustees.
(a) The number of Trustees (exclusive of any Special
Administrative Trustee) shall be five, provided that Depositor, by written
instrument may increase or decrease the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Trustees is increased pursuant to Section
8.17(a), a vacancy shall occur. The vacancy shall be filled with a
Trustee appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over
the age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.07(a), including any registration statement or
amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) the Administrative Trustees shall have power to delegate
from time to time to such of their number the doing of such things and the
execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth
herein.
Section 8.19. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified Person
acting under this Trust Agreement shall not be liable to the Trust or to
any other Covered Person for its good faith reliance on the provisions of
this Trust Agreement. The provisions of this Trust Agreement, to the
extent that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the duties
imposed on the Property Trustee under the Trust Indenture Act), are agreed
by the parties hereto to replace such other duties and liabilities of such
Indemnified Person;
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
an Indemnified Person and any Covered Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that are,
fair and reasonable to the Trust or any Holder of Trust
Securities, the Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms, considering in
each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation
and the benefits and burdens relating to such interests, any
customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person, the resolution,
action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Trust Agreement
or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or
otherwise; and
(c) Whenever in this Trust Agreement an Indemnified Person is
permitted or required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider
such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust
or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard
and shall not be subject to any other or different standard
imposed by this Trust Agreement or by applicable law.
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date. The Trust shall
automatically terminate on December 31, ____ (the "Expiration Date") and
the Trust Property shall be distributed in accordance with Section 9.04 and
Section _______.
Section 9.02. Early Termination. (a) Upon the first to occur
of any of the following events (such first occurrence, an "Early
Termination Event"):
(i) the occurrence of a Bankruptcy Event, dissolution or
liquidation of, in respect of, the Depositor;
(ii) the redemption of all of the Preferred Securities;
(iii) the occurrence of a Tax Event;
(iv) an order for judicial termination of the Trust having been
entered by a court of competent jurisdiction;
the Trust shall terminate and the Trustees shall take such action as is
required by Section 9.04.
Section 9.03. Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall
terminate upon the latest to occur of the following: (i) the distribution
by the Property Trustee to Securityholders upon the liquidation of the
Trust pursuant to Section 9.04, or upon the redemption of all of the Trust
Securities pursuant to Section 4.02 or 9.04(d), of all amounts required to
be distributed hereunder upon the final payment of the Trust Securities;
(ii) the payment of any expenses owed by the Trust; and (iii) the discharge
of all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
Section 9.04. Liquidation. (a) If an Early Termination Event
specified in clause (i) or (iv) of Section 9.02 occurs, after satisfaction
of liabilities to creditors of the Trust as provided by applicable law, the
Trust shall be liquidated by the Trustees as expeditiously as the Trustees
determine to be possible by distributing to each Securityholder a Like
Amount of Debentures, subject to Section 9.04(e). Notice of liquidation
shall be given by the Administrative Trustees by first-class mail, postage
prepaid, mailed not later than 30 nor more than 60 days prior to the
Liquidation Date to each Holder of Trust Securities at such Holder's
address appearing in the Security Register. All notices of liquidation
shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be outstanding and any
Trust Securities Certificates not surrendered for exchange will
be deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.04(d) applies receive a Liquidation
Distribution, as the Administrative Trustee or the Property
Trustee shall deem appropriate.
(b) Except where Section 9.02(a)(ii) or 9.04(e) applies, in
order to affect the liquidation of the Trust and distribution of the
Debentures to Securityholders, the Property Trustee shall establish a
record date for such distribution (which shall be not more than 45 days
prior to the Liquidation Date) and, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish
such procedures as it shall deem appropriate to affect the distribution of
Debentures in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.02(a)(ii) or 9.04(e) applies, after
the Liquidation Date, (i) the Trust Securities will no longer be deemed to
be Outstanding, (ii) certificates representing a Like Amount of Debentures
will be issued to Holders of Trust Securities Certificates, upon surrender
of such certificates to the Administrative Trustees or their agent for
exchange, (iii) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the last
Distribution Date on which a Distribution was made on such Trust
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments or interest or principal will
be made to Holders of Trust Securities Certificates with respect to such
Debentures) and (iv) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to receive Debentures
upon surrender of Trust Securities Certificates.
(d) If at any time, a Tax Event shall occur and be continuing,
the Administrative Trustees shall, unless the Debentures are redeemed in
the limited circumstances described below, terminate the Trust and, after
satisfaction of creditors of the Trust, if any, cause Debentures held by
the Property Trustee having a Like Amount of the Preferred Securities and
the Common Securities to be distributed to the Holders of the Preferred
Securities and the Common Securities on a pro rata basis in liquidation of
such Holders' interests in the Trust, within 90 days following the
occurrence of such Tax Event; provided, however, that as a condition of
such termination and distribution, the Administrative Trustees shall have
received an opinion of nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may
rely on any then applicable published revenue rulings of the Internal
Revenue Service, to the effect that the Holders of the Preferred Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of the termination of the Trust and distribution of
Debentures; and, provided, further, that, if and as long as at the time
there is available to the Trust the opportunity to eliminate, within such
90-day period, the Tax Event by taking some ministerial action, such as
filing a form or making an election, or pursuing some other similar
reasonable measure which has no adverse effect on the Trust or the Holders
of the Preferred Securities, the Trust will pursue such measure in lieu of
termination. Furthermore, if (i) the Administrative Trustees have received
an opinion of nationally recognized independent tax counsel experienced in
such matters (a "Redemption Tax Opinion") that, as a result of a Tax Event,
there is more than an insubstantial risk that the Depositor would be
precluded from deducting the interest on the Debentures for United States
federal income tax purposes even if the Debentures were distributed to the
Holders of Preferred Securities and Common Securities in liquidation of
such Holders' interests in the Trust as described above or (ii) the
Administrative Trustees shall have been informed by such tax counsel that a
No Recognition Opinion cannot be delivered to the Trust, the Depositor
shall have the right, upon not less than 30 nor more than 60 days' notice,
to redeem the Debentures in whole or in part for cash at the Redemption
Price plus accumulated and unpaid Distributions to the date of such payment
within 90 days following the occurrence of such Tax Event, and promptly
following such redemption Preferred Securities and Common Securities with
an aggregate liquidation preference amount equal to the aggregate principal
amount of the Debentures so redeemed will be redeemed by the Trust at the
Redemption Price plus accumulated and unpaid Distributions on a pro rata
basis, provided, however, that if at the time there is available to the
Depositor or the Administrative Trustees on behalf of the Trust the
opportunity to eliminate, within such 90-day period, the Tax Event by
taking some ministerial action, such as filing a form or making an
election, or pursuing some other similar reasonable measure, which has no
adverse effect on the Trust, the Depositor or the Holders of the Preferred
Securities, the Depositor or the Administrative Trustees on behalf of the
Trust will pursue such measure in lieu of redemption and provided further
that the Depositor shall have no right to redeem the Debentures while the
Administrative Trustees on behalf of the Trust are pursuing any such
ministerial action. The Common Securities will be redeemed on a pro rata
basis with the Preferred Securities, except that if an Event of Default has
occurred and is continuing, the Preferred Securities will have a priority
over the Common Securities with respect to payment of the Redemption Price
and accumulated and unpaid Distributions to the date of such payment.
(e) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property
Trustee not to be practical, the Trust Property shall be liquidated, and
the Trust shall be dissolved, wound-up or terminated, by the Property
Trustee in such manner as the Property Trustee determines. In such event,
on the date of the dissolution, winding-up or other termination of the
Trust, Securityholders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an
amount equal to the Liquidation Amount per Trust Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such dissolution, winding up or
termination, 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 Depositor will be
entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders
of Preferred Securities, except that, if an Event of Default has occurred
and is continuing or if an Event of Default has not occurred solely by
reason of a requirement that time lapse before or notice be given, the
Preferred Securities shall have a priority over the Common Securities.
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and Assumption of
Obligations. Subject to the terms and conditions hereof, the Depositor
irrevocably and unconditionally guarantees to each Person to whom the Trust
is now or hereafter becomes indebted or liable (the "Beneficiaries"), and
agrees to assume liability for, the full payment, when and as due, of any
and all Obligations (as hereinafter defined) to such Beneficiaries. As
used herein, "Obligations" means any indebtedness, expenses or liabilities
of the Trust, other than obligations of the Trust to pay to Holders or
other similar interests in the Trust the amounts due such Holders pursuant
to the terms of the Preferred Securities or such other similar interests,
as the case may be. This guarantee and assumption is intended to be for
the benefit, of, and to be enforceable by, all such Beneficiaries, whether
or not such Beneficiaries have received notice hereof.
Section 10.02. Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial or
otherwise, in a Trust Security shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or
any Securityholder for such person, to claim an accounting, take any action
or bring any proceeding in any court for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
Section 10.03. Amendment.
(a) This Trust Agreement may be amended from time to time (on
approval of a majority of the Administrative Trustees of the Trust and the
Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein or therein which may
be inconsistent with any other provision herein or therein, or to make any
other provisions with respect to matters or questions arising under this
Trust Agreement, which shall not be inconsistent with the other provisions
of this Trust Agreement, provided, however, that any such amendment shall
not adversely affect in any material respect the interests of any
Securityholder or (ii) to modify, eliminate or add to any provisions of
this Trust Agreement to such extent as shall be necessary to ensure that
the Trust will not be classified for United States federal income tax
purposes other than as a "grantor trust" and not as an association taxable
as a corporation at any time that any Trust Securities are outstanding or
to ensure the Trust's exemption from the status of an "investment company"
under the Investment Company Act of 1940, as amended; provided, however,
that, except in the case of clause (ii), such action shall not adversely
affect in any material respect the interests of any Securityholder and, in
the case of clause (i), any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.03(c), any provision of
this Trust Agreement may be amended by the Trustees and the Depositor with
(i) the consent of Holders of Trust Securities representing not less than a
majority (based upon Liquidation Amounts) of the Trust Securities then
outstanding and (ii) receipt by the Trustees of an Opinion of Counsel to
the effect that such amendment or the exercise of any power granted to the
Trustee in accordance with such amendment will not affect the Trust's
status as a grantor trust for federal income tax purposes or the Trust's
exemption from status of an "investment company" under the Investment
Company Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder
(such consent being obtained in accordance with Section 6.03 or 6.06), 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
Securityholder to institute suit for the enforcement of any such payment on
or after such date.
(d) Notwithstanding any other provisions of this Trust
Agreement, no 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 of an "investment company" under the Investment
Company Act of 1940, as amended, afforded by Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor a
copy of such amendment.
Section 10.04. Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.05. GOVERNING LAW. THIS TRUST AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE
TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
Section 10.06. Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to the Trust
or the Relevant Trustees or any of them, including any successor by
operation of law.
Section 10.07. Headings. The Article and Section headings are
for convenience only and shall not affect the construction of this Trust
Agreement.
Section 10.08. Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the
Depositor may be given or served in writing by deposit thereof, postage
prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (i) in the case of a Preferred
Securityholder, to such Preferred Securityholder as such Securityholder's
name and address may appear on the Securities Register and (ii) in the case
of the Common Securityholder or the Depositor, to Texas Utilities Electric
Company, Energy Plaza, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention:
Treasurer, facsimile no. 214-812-[ ], with a copy to the Secretary,
facsimile no. 214-812-[ ]. Such notice, demand or other communication to
or upon a Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision
of this Trust Agreement is required or permitted to be given or served to
or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the
Property Trustee or the Delaware Trustee, The Bank of New York, 000 Xxxxxxx
Xxxxxx, 00 Xxxx, Xxx Xxxx, XX 00000, Attention: Corporate Trust Department
with a copy to: The Bank of New York (Delaware), Xxxxx Xxxx Xxxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Department and (ii)
with respect to the Administrative Trustees, at the address above for
notice to the Depositor, marked "Attention: Administrative Trustees for TU
Electric Capital II". Such notice, demand or other communication to or
upon the Trust or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Trust or the Property Trustee.
Section 10.09. Agreement Not to Petition. Each of the Trustees
and the Depositor agrees for the benefit of the Securityholders that, until
at least one year and one day after the Trust has been terminated in
accordance with Article IX, it shall not file, or join in the filing of, a
petition against the Trust under any bankruptcy, reorganization,
arrangement, insolvency, liquidation or other similar law (including,
without limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any proceeding
against the Trust under any Bankruptcy Law. In the event the Depositor
takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer
with the bankruptcy court or otherwise properly contest the filing of such
petition by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing not
to take such action and should be stopped and precluded therefrom and such
other defenses, if any, as counsel for the Property Trustee or the Trust
may assert. The provisions of this Section 10.09 shall survive the
termination of this Trust Agreement.
Section 10.10. Conflict with Trust Indenture Act. (a) This
Trust Agreement is subject to the provisions of the Trust Indenture Act
that are required to be part of this Trust Agreement and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such
required provision shall control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity
securities representing interests in the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE
AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
IN WITNESS WHEREOF, the parties have caused this Amended and Restated Trust
Agreement to be duly executed, all as of the day and year first above
written.
TEXAS UTILITIES ELECTRIC COMPANY
By:_____________________________________
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:_____________________________________
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:_____________________________________
Title:
___________________________________
Xxxxx Xxxxxxxxx
solely in his capacity as
Administrative Trustee
___________________________________
Xxxxxxx Xxxxx
solely in her capacity as
Administrative
Trustee
___________________________________
Xxxxxxx Xxxxxxx
solely in his capacity as
Administrative Trustee
EXHIBIT A
CERTIFICATE OF TRUST
OF
TU ELECTRIC CAPITAL II
THIS CERTIFICATE OF TRUST of TU Electric Capital II (the
"Trust"), dated as of September __, 1995, is being duly executed and filed
by the undersigned, as trustees, to form a business trust under the
Delaware Business Trust Act (12 Del. C. ss. 3801, et seq.).
------- -------
1. Name. The name of the business trust being formed hereby is
TU Electric Capital II.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware are The Bank of New York (Delaware), Xxxxx Xxxx Center, Xxxxx 000,
Xxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
3. Effective Date. This Certificate of Trust shall be effective
as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees of
the Trust, have executed this Certificate of Trust as of the date first
above written.
THE BANK OF NEW YORK (DELAWARE), XXXXX XXXXXXXXX,
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By:______________________ By:______________________
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:
Name:
Title:
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1
Certificate Evidencing Common Securities
of
TU Electric Capital II
Common Securities
(liquidation amount $25 per Common Security)
TU Electric Capital II, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
Texas Utilities Electric Company (the "Holder") is the registered owner of
_____ (_____) common securities of the Trust representing undivided
beneficial interests in the assets of the Trust and designated the Common
Securities (liquidation amount $25 per Common Security) (the "Common
Securities"). In accordance with Section 5.10 of the Trust Agreement (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the
terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of _______ ___, 1995, as the same may be amended from time
to time (the "Trust Agreement"), including the designation of the terms of
the Common Securities as set forth therein. The Trust will furnish a copy
of the Trust Agreement to the Holder without charge upon written request to
the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate this ____ day of _________, 1995.
TU Electric Capital II
By: _____________________________________
not in his (her) individual capacity,
but solely as Administrative Trustee
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
Filed as Exhibit 4(d)
EXHIBIT D
FORM OF PREFERRED SECURITIES
Filed as Exhibit 4(f)
