Exhibit 4(a)
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
among
TXU BUSINESS SERVICES COMPANY, as Initial Depositor,
TXU EUROPE LIMITED, as Successor Depositor,
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
--------------------,
--------------------,
--------------------,
--------------------,
and
____________________, as Trustees
Dated as of ________ __, ________
TXU EUROPE CAPITAL I
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I INTERPRETATION AND DEFINITIONS.......................................1
SECTION 1.01 Definitions.............................................1
ARTICLE II TRUST INDENTURE ACT.................................................9
SECTION 2.01 Trust Indenture Act; Application........................9
SECTION 2.02 Lists of Holders.......................................10
SECTION 2.03 Reports by the Property Trustee........................10
SECTION 2.04 Periodic Reports to Property Trustee...................10
SECTION 2.05 Evidence of Compliance with Conditions Precedent.......10
SECTION 2.06 Trust Enforcement Events; Waiver.......................11
SECTION 2.07 Trust Enforcement Event; Notice........................11
ARTICLE III ORGANIZATION......................................................12
SECTION 3.01 Name...................................................12
SECTION 3.02 Office.................................................12
SECTION 3.03 Purpose................................................12
SECTION 3.04 Authority..............................................12
SECTION 3.05 Title to Property of the Trust.........................13
SECTION 3.06 Powers and Duties of the Administrative Trustees.......13
SECTION 3.07 Prohibition of Actions by the Trust and the Trustees...15
SECTION 3.08 Powers and Duties of the Property Trustee..............16
SECTION 3.09 Certain Duties and Responsibilities of the Property
Trustee................................................18
SECTION 3.10 Certain Rights of Property Trustee.....................19
SECTION 3.11 Delaware Trustee.......................................21
SECTION 3.12 Execution of Documents.................................21
SECTION 3.13 Not Responsible for Recitals or Issuance of Preferred
Trust Securities.......................................21
SECTION 3.14 Duration of Trust......................................22
SECTION 3.15 Mergers................................................22
i
ARTICLE IV SUCCESSOR DEPOSITOR................................................23
SECTION 4.01 Responsibilities of the Successor Depositor............23
SECTION 4.02 Indemnification and Expenses of the Trustee............24
ARTICLE V CONTROL CERTIFICATE.................................................24
SECTION 5.01 Issuance of the Control Certificate....................24
SECTION 5.02 Transfer of the Control Certificate....................24
SECTION 5.03 No Economic Interest in the Trust......................25
SECTION 5.04 Certain Duties and Responsibilities....................25
SECTION 5.05 Rights and Responsibilities of the Control Party.......25
ARTICLE VI TRUSTEES...........................................................27
SECTION 6.01 Number of Trustees.....................................27
SECTION 6.02 Delaware Trustee.......................................27
SECTION 6.03 Property Trustee; Eligibility..........................28
SECTION 6.04 Qualifications of Administrative Trustees and Delaware
Trustee Generally......................................28
SECTION 6.05 Administrative Trustees................................29
SECTION 6.06 Delaware Trustee.......................................29
SECTION 6.07 Appointment, Removal and Resignation of Trustees.......29
SECTION 6.08 Vacancies among Trustees...............................30
SECTION 6.09 Effect of Vacancies....................................30
SECTION 6.10 Meetings...............................................31
SECTION 6.11 Delegation of Power....................................31
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business...............................................31
ARTICLE VII...................................................................32
SECTION 7.01 Distributions..........................................32
ii
ARTICLE VIII ISSUANCE OF PREFERRED TRUST SECURITIES...........................33
SECTION 8.01 Designation and General Provisions Regarding the
Preferred Trust Securities.............................33
SECTION 8.02 Redemption of Preferred Trust Securities...............34
SECTION 8.03 Redemption Procedures..................................35
SECTION 8.04 Voting Rights of Preferred Trust Securities............37
SECTION 8.05 Paying Agent...........................................39
SECTION 8.06 Listing................................................39
SECTION 8.07 Acceptance of Guarantee and Agreements, Limited
Partnership Agreement..................................39
ARTICLE IX DISSOLUTION AND LIQUIDATION OF THE TRUST...........................39
SECTION 9.01 Dissolution of Trust...................................39
SECTION 9.02 Liquidation Distribution Upon Termination and
Dissolution of the Trust...............................40
ARTICLE X TRANSFER OF INTERESTS...............................................40
SECTION 10.01 Transfer of Preferred Trust Securities.................40
SECTION 10.02 Transfer of Certificates...............................41
SECTION 10.03 Deemed Security Holders................................41
SECTION 10.04 Book Entry Interests...................................41
SECTION 10.05 Notices to Clearing Agency.............................42
SECTION 10.06 Appointment of Successor Clearing Agency...............42
SECTION 10.07 Definitive Preferred Trust Security Certificates.......42
SECTION 10.08 Mutilated, Destroyed, Lost or Stolen Certificates......43
ARTICLE XI LIMITATION OF LIABILITY OF HOLDERS, TRUSTEES OR OTHERS.............43
SECTION 11.01 Liability..............................................43
SECTION 11.02 Exculpation............................................44
SECTION 11.03 Fiduciary Duty.........................................44
SECTION 11.04 Indemnification........................................45
SECTION 11.05 Outside Businesses.....................................47
iii
ARTICLE XII ACCOUNTING........................................................48
SECTION 12.01 Fiscal Year............................................48
SECTION 12.02 Certain Accounting Matters.............................48
SECTION 12.03 Banking................................................48
SECTION 12.04 Withholding............................................49
ARTICLE XIII AMENDMENTS AND MEETINGS..........................................49
SECTION 13.01 Amendments.............................................49
SECTION 13.02 Meetings of the Holders; Action by Written Consent.....51
ARTICLE XIV REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE..........53
SECTION 14.01 Representations and Warranties of Property Trustee.....53
SECTION 14.02 Representations and Warranties of Delaware Trustee.....53
ARTICLE XV MISCELLANEOUS......................................................54
SECTION 15.01 Notices................................................54
SECTION 15.02 Governing Law..........................................55
SECTION 15.03 Intention of the Parties...............................55
SECTION 15.04 Headings...............................................55
SECTION 15.06 Partial Enforceability.................................55
SECTION 15.07 Counterparts...........................................56
iv
TXU Europe Capital I
CROSS-REFERENCE TABLE*
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
-------------------- ---------------
310(a).................................................... 6.3(a)
310(c).................................................... Inapplicable
311(c).................................................... Inapplicable
312(a).................................................... 2.2(a)
312(b).................................................... 2.2(b)
313....................................................... 2.3
314(a).................................................... 2.4
314(b).................................................... Inapplicable
314(c).................................................... 2.5
314(d).................................................... Inapplicable
314(f).................................................... Inapplicable
315(a).................................................... 3.9(b)
315(c).................................................... 3.9(a)
315(d).................................................... 3.9(a)
316(a).................................................... Annex I
316(c).................................................... 3.6(e)
-----------------
* This Cross-Reference Table does not constitute part of the Trust
Agreement and shall not affect the interpretation of any of its terms or
provisions.
AMENDED AND RESTATED TRUST AGREEMENT, dated as of __________________,
_______, among (i) TXU Business Services Company, a Texas corporation, (the
"Initial Depositor"), (ii) TXU Europe Limited, a private limited company
organized under the laws of England and Wales, (the "Successor Depositor"),
(iii) 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"), (iv)
The Bank of New York (Delaware), a banking corporation duly organized under the
laws of Delaware, as Delaware trustee (the "Delaware Trustee"), (v) Xxxxx
Xxxxxxxx, ____________________, ____________________ and ____________________,
each an individual, and each of whose address is c/o TXU Business Services
Company,, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx, 00000 (each, an "Administrative
Trustee" and collectively the "Administrative Trustees") (the Property Trustee,
the Delaware Trustee and the Administrative Trustees are referred to herein each
as a "Trustee" and collectively as the "Trustees"), (vi) __________________, a
wholly-owned U.S. subsidiary of TXU Europe (the "Control Party"), and (vi) the
several Holders, as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Initial Depositor, the Property Trustee, the Delaware
Trustee and ____________________, as Administrative Trustee, have heretofore
duly declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into of that certain Trust Agreement, dated as of
________________, ________ (the "Original Trust Agreement"), and by the
execution by the Property Trustee and the Delaware Trustee and filing with the
Secretary of State of the State of Delaware of the Certificate of Trust, dated
__________________, ________, a copy of which is attached as Exhibit A;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued; and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirely as set forth herein.
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
INTERPRETATION AND DEFINITIONS
SECTION 1.01 DEFINITIONS.
Unless the context otherwise requires:
(a) Capitalized terms used in this Trust Agreement but not defined in
the preamble above have the respective meanings assigned to them in this Section
1.01;
(b) a term defined anywhere in this Trust Agreement has the same
meaning throughout;
(c) all references to "the Trust Agreement" or "this Trust Agreement"
are to this Trust Agreement as modified, supplemented or amended from time to
time;
(d) all references in this Trust Agreement to Articles and Sections
and Annexes and Exhibits are to Articles and Sections of and Annexes and
exhibits to this Trust Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Trust Agreement unless otherwise defined in this Trust
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) a term used in this Trust Agreement and not otherwise defined
herein shall have the meaning ascribed to such term in the Partnership
Agreement.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Administrative Trustee" has the meaning set forth in Section 6.01 of
this Trust Agreement.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act, or any successor rule thereunder.
"Affiliate Investment Instruments" has the meaning set forth in Section
7.1 of the Limited Partnership Agreement.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as set forth in Section 10.04 of this
Trust Agreement.
"Business Day" means any 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 is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Certificate" means a Preferred Trust Security Certificate.
"Change in 1940 Act Law" means, as a result of the occurrence on or
after the date of the issuance of the Preferred Trust Securities of a change in
law or regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, the Trust is or will be considered an "investment company" which is
required to be registered under the 1940 Act.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Preferred Trust Securities and in whose name or in the name of a nominee
of that organization shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of beneficial interests in
the Preferred Trust Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of interest in securities
deposited with the Clearing Agency.
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the United States Securities and Exchange
Commission.
"Company" means TXU Business Services Company,.
"Company Indemnified Person" means (a) any Administrative Trustee; (b)
any Affiliate of any Administrative Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Administrative Trustee; or (d) any officer, director, shareholder, member,
partner, employee, representative or agent of the Trust or its Affiliates.
"Control Certificate" has the meaning set forth in Section 5.01(a) of
this Trust Agreement.
"Control Party" has the meaning set forth in the first paragraph of
this Trust Agreement, or any person appointed successor Control Party pursuant
to the terms of this Trust Agreement.
"Corporate Trust Office" means the principal corporate trust office of
the Property Trustee located in New York, New York which at the date of
execution of this Trust Agreement is located at 000 Xxxxxxx Xxxxxx - 00X, Xxx
Xxxx, Xxx Xxxx 00000.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Preferred Trust Securities.
"Definitive Preferred Trust Security Certificates" has the meaning set
forth in Section 10.04 of this Trust Agreement.
"Delaware Trustee" has the meaning set forth in the first paragraph of
this Trust Agreement, or any person appointed Successor Delaware Trustee.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fiduciary Indemnified Person" has the meaning set forth in Section
11.04(b) of this Trust Agreement.
"Fiscal Period" has the meaning set forth in Section 1.1 of the
Limited Partnership Agreement.
"Fiscal Year" has the meaning set forth in Section 12.01 of this Trust
Agreement.
"General Partner" means TXU Europe Limited, in its capacity as the
general partner of the Partnership, its permitted successors, or any successor
general partner in the Partnership admitted as such pursuant to the Limited
Partnership Agreement.
"Global Certificate" has the meaning set forth in Section 10.04 of
this Trust Agreement.
"Holder" means a Person in whose name a Certificate representing a
Preferred Trust Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Initial Debentures" has the meaning set forth in Section 7.1(b) of
the Limited Partnership Agreement.
"Initial Depositor" has the meaning set forth in the first paragraph
of this Trust Agreement.
"Investment Affiliate" means any corporation, partnership, limited
liability company or other entity (other than the Partnership or the Trust) that
(i) is controlled by the Company and (ii) is not an investment company by reason
of Section 3(a) or 3(b) of the 1940 Act or is otherwise an eligible recipient of
funds directly or indirectly from the Trust pursuant to an order issued by the
Commission.
"Investment Company" means an investment company as defined in the
1940 Act.
"Investment Guarantee" means any guarantee on a subordinated basis by
the Company with respect to payment of interest, principal and other payment
terms of Affiliate Investment Instruments.
"Legal Action" has the meaning set forth in Section 3.06(h) of this
Trust Agreement.
"Limited Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership of TXU Europe Funding I, L.P. dated as of
________, ________, as the same may be amended from time to time in accordance
with its terms.
"Liquidation Amount" means the stated amount of $25 per Preferred
Trust Security.
"List of Holders" has the meaning set forth in Section 2.02(a) of this
Trust Agreement.
"Majority in Liquidation Amount of the Preferred Trust Securities"
means, except as provided in the terms of the Preferred Trust Securities or by
the Trust Indenture Act, Holder(s) of outstanding Preferred Trust Securities
voting together who are the record owners of more than 50% of the aggregate
Liquidation Amount of all outstanding Preferred Trust Securities of the relevant
class.
"Ministerial Action" means, a ministerial action (such as filing a form
or making an election or pursuing some other similar reasonable measure) which
in the sole judgment of the Company has or will cause no adverse effect on the
Trust, the Partnership, the Company or the holders of the Preferred Trust
Securities and will involve no material cost.
"Nasdaq" means the National Association of Securities Dealers
Automated Quotation System.
"Officers' Certificate" means, with respect to any Person (who is not
an individual), a certificate signed by a director, the President, a Vice
President or the Treasurer, and by an Assistant Treasurer, the Secretary or an
Assistant Secretary of such Person. 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 director or 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 director or officer in
rendering the Officers' Certificate;
(c) a statement that each such director or officer has made
such examination or investigation as, in such director's or officer's
opinion, is necessary to enable such director or 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
director or officer, such condition or covenant has been complied
with.
"Original Trust Agreement" has the meaning set forth in the first
clause of this Trust Agreement.
"Partnership" means TXU Europe Funding I, L.P., a Delaware limited
partnership formed pursuant to the Limited Partnership Agreement.
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of TXU Europe Funding I, L.P., dated ____________ as the
same may be amended from time to time in accordance with its terms.
"Partnership Enforcement Event" has the meaning set forth in Section
6.2(h)(i) of the Limited Partnership Agreement.
"Partnership Guarantee" means the Partnership Guarantee Agreement dated
as of _________, _______, by the Company in favor of the Preferred Partnership
Security Holders with respect to the Preferred Partnership Securities, as
amended or supplemented from time to time.
"Partnership Special Event" has the meaning set forth in Section 1.1 of
the Limited Partnership Agreement.
"Payment Amount" has the meaning set forth in Section 7.01(a) of this
Trust Agreement.
"Paying Agent" has the meaning set forth in Section 3.08(g) of this
Trust Agreement.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Partnership Securities" has the meaning set forth in Section
1.1 of the Limited Partnership Agreement.
"Preferred Security Beneficial Owner" or "Preferred Trust Security
Beneficial Owner" means, with respect to a Book Entry Interest, a Person who is
the beneficial owner of such Book Entry Interest, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, or each case in accordance with the rules of such Clearing
Agency).
"Preferred Trust Securities Guarantee" means the Preferred Trust
Securities Guarantee dated as of _________________, _________, entered into by
the Company, as Guarantor, for the benefit of holders of the Preferred Trust
Securities.
"Preferred Trust Security" has the meaning set forth in Section
8.01(a)(i) of this Trust Agreement.
"Preferred Trust Security Certificate" means a certificate representing
a Preferred Security substantially in the form of Exhibit A-1.
"Property Account" has the meaning set forth in Section 3.08(c) of
this Trust Agreement.
"Property Trustee" has the meaning set forth in the first paragraph of
this Trust Agreement, or any person appointed as Successor Property Trustee.
"Pro Rata" means, in reference to any distributions on or redemptions
of Preferred Trust Securities or the distribution of Preferred Partnership
Securities or any other payment with respect to Preferred Trust Securities in
connection with a Trust Special Event or liquidation of the Trust, to each
Holder of Preferred Trust Securities according to the aggregate Liquidation
Amount of the Preferred Trust Securities held by the relevant Holder in relation
to the aggregate Liquidation Amount of all Preferred Trust Securities
outstanding.
"Quorum" means a majority of the Administrative Trustees or, if there
are only two Administrative Trustees, both of them.
"Redemption/Distribution Notice" has the meaning set forth in Section
8.03(a) of this Trust Agreement.
"Redemption Price" has the meaning set forth in Section 8.02(a) of
this Trust Agreement.
"Related Party" means, with respect to the Successor Depositor, any
direct or indirect wholly owned subsidiary of the Successor Depositor or any
Person that owns, directly or indirectly, 100% of the outstanding voting
securities of the Successor Depositor.
"Responsible Officer" means, with respect to the Trust Guarantee
Trustee, the chairman or vice-chairman of the board of directors, the chairman
or vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, or any other
officer of the Trust Guarantee Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Rule 3a-5" means Rule 3a-5 under the 1940 Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Special Representative" has the meaning set forth in Section
6.2(h)(i) of the Limited Partnership Agreement.
"Successor Delaware Trustee" has the meaning set forth in Section
6.07(b)(ii) of this Trust Agreement.
"Successor Depositor" has the meaning set forth in the first paragraph
of this Trust Agreement, or any successor entity to TXU Europe by reason of
merger, consolidation or amalgamation, in its capacity as Successor Depositor of
the Trust.
"Successor Entity" has the meaning set forth in Section 3.15(b)(i) of
this Trust Agreement.
"Successor Property Trustee" has the meaning set forth in Section
6.07(b)(i) of this Trust Agreement.
"Successor Preferred Trust Securities" has the meaning set forth in
Section 3.15(b)(i)(B) of this Trust Agreement.
"Super Majority" has the meaning set forth in Section 2.06(a)(ii) of
this Trust Agreement.
"Surrendering Party" has the meaning set forth in Section 5.02(a) of
this Trust Agreement.
"Tax Action" means (a) an amendment to, change in or announced
proposed change in the laws (or any regulations thereunder) of the United States
or the United Kingdom or any political subdivision or taxing authority thereof
or therein, (b) a judicial decision interpreting, applying or clarifying such
laws or regulations, (c) an administrative pronouncement or action that
represents an official position (including a clarification of an official
position) of the governmental authority or regulatory body making such
administrative pronouncement or taking such action, or (d) a threatened
challenge asserted in connection with an audit of the Company or any of its
subsidiaries, the Partnership, or the Trust, or a threatened challenge asserted
in writing against any other taxpayer that has raised capital through the
issuance of securities that are substantially similar to the Affiliate
Investment Instruments, the Preferred Partnership Securities, or the Preferred
Trust Securities, which amendment or change is adopted or which decision,
pronouncement or proposed change is announced or which action, clarification or
challenge occurs on or after the date of the prospectus related to the issuance
of the Preferred Trust Securities.
"10% in Liquidation Amount of the Preferred Trust Securities" means,
except as provided in the terms of the Preferred Trust Securities or by the
Trust Indenture Act, Holder(s) of outstanding Preferred Trust Securities voting
together who are the record owners of 10% or more of the aggregate Liquidation
Amount of all outstanding Preferred Trust Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury Department, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust Dissolution Tax Opinion" means an opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that there has been a Trust Tax Event.
"Trust Enforcement Event" means the occurrence, at any time, of (i)
arrearages on distributions on the Preferred Trust Securities that shall exist
for ______ consecutive quarterly distribution periods, (ii) a default by the
Company in respect of any of its obligations under any Trust Guarantee or (iii)
a Partnership Enforcement Event (as defined in the Limited Partnership
Agreement).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Investment Company Event" means that the Company shall have
requested and received and shall have delivered to the Administrative Trustees
an opinion of nationally recognized independent legal counsel experienced in
such matters to the effect that as a result of a Change in 1940 Act Law, the
Trust is or will be considered an "investment company" which is required to be
registered under the 1940 Act.
"Trust Liquidation" has the meaning set forth in Section 9.02(a) of
this Trust Agreement.
"Trust Liquidation Distribution" has the meaning set forth in Section
9.02(a) of this Trust Agreement.
"Trust Redemption Tax Opinion" means an opinion of nationally
recognized independent tax counsel experienced in such matters that there has
been a Trust Tax Event, and following such Trust Tax Event there is more than an
insubstantial risk that (i) interest payable by one or more of the Investment
Affiliates with respect to the Affiliate Investment Instruments is not, or will
not be, deductible by such Investment Affiliate for United States federal or
United Kingdom corporate income tax purposes or (ii) Additional Amounts (as
defined in the Indentures, the Partnership Guarantee and the Trust Guarantees)
are, or would be, payable in respect of Affiliate Investment Instruments, any
Investment Guarantee, the Partnership Guarantee or any Trust Guarantee, even if
the Preferred Partnership Securities were distributed to the Holders of the
Preferred Trust Securities in liquidation of such Holders' interests in the
Trust.
"Trust Special Event" means a Trust Tax Event or a Trust Investment
Company Event.
"Trust Tax Event" means that there has been a Tax Action which relates
to any of the items described in (i) through (iv) below, and that there is more
than an insubstantial risk that (i) the Trust is, or will be subject to United
States federal or United Kingdom corporate income tax with respect to income
accrued or received on the Preferred Partnership Securities, (ii) the Trust is,
or will be, subject to more than a de minimis amount of other taxes, duties or
other governmental charges, (iii) interest payable by one or more of the
Investment Affiliates with respect to the Affiliate Investment Instruments is
not, or will not be, deductible by such Investment Affiliate for United States
federal or United Kingdom corporate income tax purposes or (iv) Additional
Amounts (as defined in the Indentures, the Partnership Guarantee and the Trust
Guarantees) are, or would be, payable in respect of Affiliate Investment
Instruments, any Investment Guarantee, the Partnership Guarantee or any Trust
Guarantee.
"Trustee" or "Trustees" means each Person who has signed this Trust
Agreement as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"TXU Europe" means TXU Europe Limited, a private limited company
incorporated under the laws of England and Wales.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 TRUST INDENTURE ACT; APPLICATION.
(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 and to the extent that any provision of this Trust Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Preferred Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
SECTION 2.02 LISTS OF HOLDERS.
(a) Each of the Successor Depositor and the Administrative Trustees on
behalf of the Trust shall provide the Property Trustee (i) within 14 days after
each record date for payment of Distributions, a list, in such form as the
Property Trustee may reasonably require, of the names and addresses of the
Holders ("List of Holders") as of such record date, provided, that neither the
Successor Depositor nor the Administrative Trustees on behalf of the Trust shall
be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Property
Trustee by the Successor Depositor and the Administrative Trustees on behalf of
the Trust, and (ii) at any other time, within 30 days of receipt by the Trust of
a written request for a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Property Trustee. The Property Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity), provided, that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03 REPORTS BY THE PROPERTY TRUSTEE.
Within 60 days after___________ of each year commencing ___________,
______, the Property Trustee shall provide to the Holders such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Property
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.04 PERIODIC REPORTS TO PROPERTY TRUSTEE.
Each of the Successor Depositor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such documents,
reports and information as are required by Section 314 of the Trust Indenture
Act (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 2.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Successor Depositor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent provided for in this Trust Agreement
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.06 TRUST ENFORCEMENT EVENTS; WAIVER.
(a) The Holders of a Majority in Liquidation Amount of Preferred Trust
Securities may, by vote, on behalf of the Holders, waive any past Trust
Enforcement Event in respect of the Preferred Trust Securities and its
consequences, provided, that if the underlying event of default or Partnership
Enforcement Event:
is not waivable under the Preferred Trust Securities
Guarantee or the Limited Partnership Agreement, the Trust Enforcement
Event under this Trust Agreement shall also not be waivable; or
requires the consent or vote of the Holders of greater than
a Majority in Liquidation Amount of the Preferred Trust Securities to
be waived under the Preferred Trust Securities Guarantee or the
Preferred Partnership Securities to be waived under the Limited
Partnership Agreement (a "Super Majority"), the Trust Enforcement
Event under this Trust Agreement may only be waived by the vote of the
Holders of at least the relevant Super Majority in Liquidation Amount
of the Preferred Trust Securities.
The foregoing provisions of this Section 2.06(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Trust Agreement and
the Preferred Trust Securities, as permitted by the Trust Indenture Act. Upon
such waiver, any such default shall cease to exist, and any Trust Enforcement
Event with respect to the Preferred Trust Securities arising therefrom shall be
deemed to have been cured, for every purpose of this Trust Agreement, but no
such waiver shall extend to any subsequent or other default or Trust Enforcement
Event with respect to the Preferred Trust Securities or impair any right
consequent thereon. Any waiver by the Holders of Trust Enforcement Events with
respect to the Preferred Trust Securities shall also be deemed to constitute a
waiver by the Control Party for all purposes of this Trust Agreement without any
further act, vote, or consent of the Control Party.
(b) A waiver of Partnership Enforcement Events under the Limited
Partnership Agreement by the Property Trustee at the direction of the Holders
constitutes a waiver of the corresponding Trust Enforcement Event under this
Trust Agreement. The foregoing provisions of this Section 2.06(c) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Trust Agreement and the Preferred Trust Securities, as permitted by the Trust
Indenture Act.
SECTION 2.07 TRUST ENFORCEMENT EVENT; NOTICE.
The Property Trustee shall, within 90 days after the occurrence of a
Trust Enforcement Event, transmit by mail, first class postage prepaid, to the
Holders, notices of all defaults with respect to the Preferred Trust Securities
actually known to a Responsible Officer of the Property Trustee, unless such
defaults have been cured before the giving of such notice (the term "defaults"
for the purposes of this Section 2.07 being hereby defined to be defaults as
defined in the Trust Guarantees or the Limited Partnership Agreement, not
including any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); provided, that except for a default in
the payment of principal of (or premium, if any) or interest on any of the
Affiliate Investment Instruments or in the payment of any sinking fund
installment established for the Affiliate Investment Instruments, the Property
Trustee shall be fully protected in withholding such notice if and so long as a
Responsible Officer of the Property Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders.
ARTICLE III
ORGANIZATION
SECTION 3.01 NAME.
The Trust is named "TXU Europe Capital Trust I," as such name may be
modified from time to time by the Administrative Trustees following written
notice to the Holders. The Trust's activities may be conducted under the name of
the Trust or any other name deemed advisable by the Administrative Trustees.
SECTION 3.02 OFFICE.
The address of the principal office of the Trust is c/o [TXU Business
Services Company, Energy Plaza, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000]. On ten
Business Days written notice to the Holders, the Administrative Trustees may
designate another principal office.
SECTION 3.03 PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue the
Preferred Trust Securities, (b) investing the proceeds from such sale of the
Preferred Trust Securities to acquire the Preferred Partnership Securities, and
(c) except as otherwise limited herein, to engage in only those other activities
necessary or incidental thereto. The Trust shall not borrow money, issue debt or
reinvest proceeds derived from investments, mortgage or pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 3.04 AUTHORITY.
Subject to the limitations provided in this Trust Agreement and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Administrative Trustees in accordance with their powers
shall constitute the act of and serve to bind the Trust and an action taken by
the Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Trust Agreement.
SECTION 3.05 TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.08 with respect to the Preferred
Partnership Securities and the Property Account or as otherwise provided in this
Trust Agreement, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial ownership interest in the assets
of the Trust. Without prejudice to the generality of the preceding sentence, all
income of the Trust shall, as it arises, be held on trust for the Holders
absolutely Pro Rata to their interests in Preferred Trust Securities, such
income to be distributed in accordance with the provisions of Article VII.
SECTION 3.06 POWERS AND DUTIES OF THE ADMINISTRATIVE TRUSTEES.
The Administrative Trustees (and, in the case of (b)(iii)-(vi) below,
Xxxxxx X. Xxxxx, Xx., as authorized representative of the Trust) shall have the
exclusive power, duty and authority to cause the Trust to engage in the
following activities:
(a) to issue and sell the Preferred Trust Securities in accordance
with this Trust Agreement; provided, however, that the Trust may issue no more
than one series of Preferred Trust Securities, and, provided, further, that
there shall be no interests in the Trust other than the Preferred Trust
Securities, and the issuance of Preferred Trust Securities shall be limited to a
one-time issuance of the Preferred Trust Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred Trust
Securities, at the direction of the Successor Depositor,
to execute and file with the Commission the registration
statement on Form S-1 prepared by the Successor Depositor, including
any amendments thereto, pertaining to the Preferred Trust Securities,
the Preferred Partnership Securities, the Preferred Trust Securities
Guarantee and the Partnership Guarantee;
to execute and file any documents prepared by the Successor
Depositor, or take any acts as determined by the Control Party to be
necessary in order to qualify or register all or part of the Preferred
Trust Securities in any State in which the Control Party has
determined to qualify or register such Preferred Trust Securities for
sale;
to execute and file an application, prepared by the
Successor Depositor, to The New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq National Market System for
listing upon notice of issuance of any Preferred Trust Securities;
to execute and file with the Commission a registration
statement, including any amendments thereto, prepared by the Successor
Depositor, relating to the registration of the Preferred Trust
Securities, the Preferred Partnership Securities, the Preferred Trust
Securities Guarantee and the Partnership Guarantee under Section 12(b)
or Section 12(g) of the Exchange Act;
to execute and enter into an underwriting agreement
providing for the sale of the Preferred Trust Securities and perform
the duties and obligations of the Trust thereunder;
to execute the Partnership Agreement; and
to take any other actions necessary or desirable to carry
out any of the foregoing activities;
(c) to acquire the Preferred Partnership Securities with the proceeds
of the sale of the Preferred Trust Securities; provided, however, that the
Administrative Trustees shall cause legal title to the Preferred Partnership
Securities to be held of record in the name of the Property Trustee for the
benefit of the Holders;
(d) to give the Successor Depositor and the Property Trustee prompt
written notice of the occurrence of a Trust Special Event; provided, that the
Administrative Trustees shall consult with the Successor Depositor and the
Property Trustee before taking or refraining from taking any Ministerial Action
in relation to a Trust Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders and the Control Party as to such actions and applicable
record dates;
(f) to give prompt written notice to the Holders of any notice
received from the Partnership of the General Partner's election not to make a
current, quarterly distribution on the Preferred Partnership Securities under
the Limited Partnership Agreement;
(g) to take all actions and perform such duties as may be required of
the Administrative Trustees pursuant to the terms of the Preferred Trust
Securities;
(h) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.08(f), the Property Trustee has
the exclusive power to bring such Legal Action;
(i) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(j) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(k) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Administrative Trustee;
(l) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(m) to act as, or appoint another Person to act as, registrar and
transfer agent for the Preferred Trust Securities;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take any and all actions that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such existence
is necessary to protect the limited liability of the Holders or to enable the
Trust to effect the purposes for which the Trust was created;
(p) to take any action, or to take no action, not inconsistent with
this Trust Agreement or with applicable law, that the Administrative Trustees
determine in their discretion to be necessary or desirable in carrying out the
activities of the Trust as set out in this Section 3.06, including, but not
limited to:
causing the Trust not to be deemed to be an Investment
Company required to be registered under the 1940 Act; and
taking no action which would be reasonably likely to cause
the Trust to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income
tax purposes or as a company for United Kingdom corporate tax
purposes;
provided, that such action does not adversely affect the interests of Holders;
and
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Administrative Trustees, on behalf of
the Trust.
The Administrative Trustees must exercise the powers set forth in this
Section 3.06 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.03, and the Administrative Trustees shall not
take any action that is inconsistent with the purposes and functions of the
Trust set forth in Section 3.03.
Subject to this Section 3.06, the Administrative Trustees shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.08.
Any expenses incurred by the Administrative Trustees pursuant to this
Section 3.06 shall be reimbursed by the Partnership pursuant to Section 9.1 of
the Limited Partnership Agreement.
SECTION 3.07 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Trust Agreement. In particular, the Trust shall
not and the Trustees (including the Property Trustee) shall cause the Trust not
to:
invest any proceeds received by the Trust from holding the
Preferred Partnership Securities, but shall distribute all such
proceeds to Holders pursuant to the terms of this Trust Agreement and
of the Preferred Trust Securities;
acquire any assets other than as expressly provided herein;
possess Trust property for other than a Trust purpose;
make any loans or incur any indebtedness or acquire any
securities other than the Preferred Partnership Securities;
possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Preferred Trust Securities in any
way whatsoever;
issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Preferred Trust Securities;
other than as set forth herein, (A) cause the Special
Representative to direct the time, method and place of conducting any
proceeding for any remedy available to the Special Representative or
exercising any trust or power conferred upon the Special
Representative with respect to the Preferred Partnership Securities,
the Affiliate Investment Instruments, and the Investment Guarantees,
(B) cause the Special Representative to waive any past default that is
waivable under the Limited Partnership Agreement, the Affiliate
Investment Instruments or the Investment Guarantees, (C) cause the
Special Representative to exercise any right to rescind or annul any
declaration that the principal of, or other amounts in respect of, any
Affiliate Investment Instrument or Investment Guarantee is due and
payable or (D) consent to any amendment, modification or termination
of the Limited Partnership Agreement or the Preferred Partnership
Securities where such consent shall be required; and
other than in connection with the liquidation of the Trust
pursuant to a Trust Special Event or upon redemption of all the
Preferred Trust Securities, file a certificate of cancellation of the
Trust.
SECTION 3.08 POWERS AND DUTIES OF THE PROPERTY TRUSTEE.
(a) The legal title to the Preferred Partnership Securities shall be
owned by and held of record in the name of the Property Trustee in trust for the
benefit of the Holders. The right, title and interest of the Property Trustee to
the Preferred Partnership Securities shall vest automatically in each Person who
may hereafter be appointed as Property Trustee in accordance with Section 6.07.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Preferred Partnership Securities have
been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Preferred Partnership Securities to the Administrative Trustees
or to the Delaware Trustee (if the Property Trustee does not also act as
Delaware Trustee).
(c) The Property Trustee shall:
establish and maintain a segregated non-interest bearing
trust account (the "Property Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders
and, upon the receipt of payments of funds made in respect of the
Preferred Partnership Securities held by the Property Trustee, deposit
such funds into the Property Account and make payments to the Holders
from the Property Account in accordance with Section 7.01. Funds in
the Property Account shall be held uninvested until disbursed in
accordance with this Trust Agreement. The Property Account shall be an
account that is maintained with a banking institution (including the
Property Trustee if it qualifies hereunder) authorized to exercise
corporate trust powers and having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by a
Federal or state authority;
engage in such ministerial activities as shall be necessary
or appropriate to effect the redemption of the Preferred Trust
Securities to the extent the Preferred Partnership Securities are
redeemed; and
upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Preferred
Trust Securities, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution of the Preferred
Partnership Securities to Holders upon the occurrence of a Trust
Special Event.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Preferred Trust Securities.
(e) The Property Trustee shall take any Legal Action which arises out
of or in connection with a Trust Enforcement Event of which a Responsible
Officer of the Property Trustee has actual knowledge or the Property Trustee's
duties and obligations under this Trust Agreement or the Trust Indenture Act.
(f) The Property Trustee shall have the legal power to exercise all of
the rights, powers and privileges of a holder of Preferred Partnership
Securities and, if a Trust Enforcement Event occurs and is continuing, the
Property Trustee shall, for the benefit of Holders, enforce its rights as holder
of the Preferred Partnership Securities subject to the rights of the Holders
pursuant to the terms of such Preferred Trust Securities.
(g) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Preferred Trust Securities
and any such Paying Agent shall comply with Section 317(b) of the Trust
Indenture Act. Any Paying Agent may be removed by the Property Trustee at any
time and a successor Paying Agent or additional Paying Agents may be appointed
at any time by the Property Trustee.
(h) The Property Trustee shall continue to serve as a Trustee until
either:
the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders pursuant to the terms of
the Preferred Trust Securities; or
(i) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.07.
Subject to this Section 3.08, the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the Administrative Trustees
set forth in Section 3.06.
The Property Trustee must exercise the powers set forth in this
Section 3.08 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.03, and the Property Trustee shall not take any
action that is inconsistent with the purposes and functions of the Trust set out
in Section 3.03.
SECTION 3.09 CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY
TRUSTEE.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the curing or waiver of all Trust Enforcement Events
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Trust Agreement and no implied covenants shall be
read into this Trust Agreement against the Property Trustee. In case a Trust
Enforcement Event has occurred (that has not been cured or waived pursuant to
Section 2.06) of which a Responsible Officer of the Property Trustee has actual
knowledge, the Property Trustee shall exercise such of the rights and powers
vested in it by this Trust Agreement, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
prior to the occurrence of a Trust Enforcement Event and
after the curing or waiving of all such Trust Enforcement Events that
may have occurred:
(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this Trust Agreement and the
Property Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Trust Agreement, and no
implied covenants or obligations shall be read into this Trust Agreement against
the Property Trustee;
(B) and in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property Trustee and conforming to the
requirements of this Trust Agreement; but in the case of any such certificates
or opinions that by any provision hereof are specifically required to be
furnished to the Property Trustee, the Property Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Trust Agreement;
the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
subject to the requirement of the Property Trustee receiving
a tax opinion as set forth in Section 8.04(d) or 8.05(c), as the case
may be, the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
Liquidation Amount of the Preferred Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
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 it shall have
reasonable grounds for believing that the repayment of such funds or
protection from such liability is not reasonably assured to it under
the terms of this Trust Agreement or indemnity reasonably satisfactory
to the Property Trustee against such risk or liability is not
reasonably assured to it;
the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Preferred
Partnership Securities and the Property Account 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 and the Trust Indenture Act;
the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of
the Preferred Partnership Securities or the payment of any taxes or
assessments levied thereon or in connection therewith;
money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Property Account
maintained by the Property Trustee pursuant to Section 3.08(c)(i) and
except to the extent otherwise required by law; and
the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Successor
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for any default or misconduct of
the Administrative Trustees or the Successor Depositor.
SECTION 3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE.
(a) Subject to the provisions of Section 3.09:
the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
any direction or act of the Control Party, Successor
Depositor, or the Administrative Trustees acting on behalf of the
Trust contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers' Certificate;
whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Control Party,
Successor Depositor ,or the Administrative Trustees;
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 filing under tax or
securities laws) or any re-recording, refilling or registration
thereof;
the Property Trustee may consult with counsel or other
experts and the advice or opinion of such counsel and experts with
respect to legal matters or advice within the scope of such experts'
area of expertise 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 accordance with such advice or opinion;
such counsel may be counsel to the Successor Depositor or any of its
Affiliates, and may include any of its employees. 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;
the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any Holder, unless (a) such
Holder shall have provided to the Property Trustee security and
indemnity, reasonably satisfactory to the Property Trustee, against
the costs, expenses (including attorneys' fees and expenses and the
expenses of the Property Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Property Trustee and (b) the Property Trustee has
obtained the legal opinions, if any, required by Section 8.04(d) or
8.05(c), as the case may be, of this Trust Agreement; provided, that,
nothing contained in this Section 3.10(a)(vi) shall be taken to
relieve the Property Trustee, upon the occurrence of a Trust
Enforcement Event, of its obligation to exercise the rights and powers
vested in it by this Trust Agreement;
the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees 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;
any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders, and the signature of
the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action and no third party shall be
required to inquire as to the authority of the Property Trustee to so
act or as to its compliance with any of the terms and provisions of
this Trust Agreement, both of which shall be conclusively evidenced by
the Property Trustee's or its agent's taking such action;
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 which instructions may only be given by the Holders of the
same proportion in Liquidation Amount of the Preferred Trust
Securities as would be entitled to direct the Property Trustee under
the terms of the Preferred Trust Securities in respect of such remedy,
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 fully protected in conclusively relying on or acting in
or accordance with such instructions; provided, however, that the
Property Trustee shall not be required to take any action unless it
shall have obtained such legal opinions, if any, required by Sections
8.04(d) or 8.05(c), as the case may be, of this Trust Agreement; and
except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Trust Agreement.
(b) 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. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 DELAWARE TRUSTEE.
Notwithstanding any provision of this Trust Agreement other than Section
6.02, 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
Administrative Trustees or the Property Trustee described in this Trust
Agreement. Except as set forth in Section 6.02, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Business Trust Act.
SECTION 3.12 EXECUTION OF DOCUMENTS.
Except as otherwise required by the Business Trust Act, any Administrative
Trustee or Xxxxxx X. Xxxxx, Xx., as the authorized representative of the Trust,
is authorized to execute on behalf of the Trust any documents that the
Administrative Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.06.
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF PREFERRED TRUST
SECURITIES.
The recitals contained in this Trust Agreement and the Preferred Trust
Securities shall be taken as the statements of the Initial Depositor, 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. The Trustees make no representations as to the
validity or sufficiency of this Trust Agreement or the Preferred Trust
Securities.
SECTION 3.14 DURATION OF TRUST.
The Trust, unless dissolved pursuant to the provisions of Article VIII
hereof, shall have perpetual existence.
SECTION 3.15 MERGERS.
(a) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c) or Section 9.02.
(b) The Trust may, with the consent of the Administrative Trustees or,
if there are more than two, a majority of the Administrative Trustees and
without the consent of the Holders, the Delaware Trustee or the Property
Trustee, consolidate, amalgamate, merge with or into, or be replaced by, or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to a trust organized as such under the laws of any
State of the United States; provided, that:
if the Trust is not the survivor, such successor entity (the
"Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Preferred Trust Securities; or
(B) substitutes for the Preferred Trust Securities other
securities having substantially the same terms as the Preferred Trust Securities
(the "Successor Preferred Trust Securities") so long as the Successor Preferred
Trust Securities rank the same as the Preferred Trust Securities rank with
respect to distributions, assets and payments upon liquidation, redemption and
otherwise;
the Company expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as the Property
Trustee as the Holder;
the Successor Preferred Trust Securities are listed, or any
Successor Preferred Trust Securities will be listed upon notification of
issuance, on any national securities exchange or with another organization on
which the Preferred Trust Securities are then listed or quoted;
such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Trust Securities
(including any Successor Preferred Trust Securities) to be downgraded by any
nationally recognized statistical rating organization;
such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders (including any Successor Preferred Trust
Securities) in any material respect;
such Successor Entity has a purpose identical to that of the
Trust;
TXU Europe, or a successor permitted by the Trust
Guarantees, guarantees the obligations of such Successor Entity under the
Successor Preferred Trust Securities at least to the extent provided by the
Trust Guarantees; and
prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Control Party has received an
opinion of a nationally recognized independent counsel to the Trust experienced
in such matters to the effect that:
(C) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease will not adversely affect the rights, preferences
and privileges of the Holders (including any Successor Preferred Trust
Securities) in any material respect (other than with respect to any dilution of
the Holders' interest in the new entity);
(D) following such merger, consolidation, amalgamation,
replacement, conveyance,transfer or lease, neither the Trust nor the Successor
Entity will be required to register as an Investment Company under the 1940 Act;
(E) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will not be classified as an
association or a publicly traded partnership taxable as a corporation for United
States federal income tax purposes or as a company for United Kingdom corporate
income tax purposes; and
(F) following such merger, consolidation, amalgamation or
replacement, the Partnership will not be classified as an association or a
publicly traded partnership taxable as a corporation for United States federal
income tax purposes or as ____________________ for United Kingdom corporate
income tax purposes.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in Liquidation Amount of the Preferred Trust
Securities, consolidate, amalgamate, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity or the Partnership to be
classified as an association or a publicly traded partnership taxable as a
corporation for United States federal income tax purposes or as a company for
United Kingdom corporate income tax purposes.
ARTICLE IV
SUCCESSOR DEPOSITOR
SECTION 4.01 RESPONSIBILITIES OF THE SUCCESSOR DEPOSITOR.
In connection with the issue and sale of the Preferred Trust Securities,
the Successor Depositor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-1 in relation to the Preferred Trust
Securities, the Preferred Partnership Securities, the Preferred Trust Securities
Guarantee and the Partnership Guarantee, including any amendments thereto;
(b) to prepare for filing by the Trust an application to The New York
Stock Exchange, Inc. or any other national stock exchange or the Nasdaq National
Market System for listing upon notice of issuance of any Preferred Trust
Securities;
(c) to prepare for filing by the Trust with the Commission a
registration statement relating to the registration of the Preferred Trust
Securities, the Preferred Partnership Securities, the Preferred Trust Securities
Guarantee, and the Partnership Guarantee under Section 12(b) or Section 12(g) of
the Exchange Act, including any amendments thereto; and
SECTION 4.02 INDEMNIFICATION AND EXPENSES OF THE TRUSTEE.
To the extent the Partnership fails to do so, the Successor Depositor
agrees to indemnify the Property Trustee and the Delaware Trustee for, and to
hold each of them harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Property Trustee or the
Delaware Trustee, as the case may be, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending either of them against any claim or liability in
connection with the exercise or performance of any of their respective powers or
duties hereunder; the provisions of this Section 4.02 shall survive the
resignation or removal of the Delaware Trustee or the Property Trustee or the
termination of this Trust Agreement.
ARTICLE V
CONTROL CERTIFICATE
SECTION 5.01 ISSUANCE OF THE CONTROL CERTIFICATE.
(a) The Initial Depositor shall transfer an instrument (the "Control
Certificate ") to the Control Party, which instrument shall establish in the
holder thereof certain voting, administrative and appointment powers with
respect to the Trust. Such voting, administrative and appointment powers shall
be as specified in this Trust Agreement.
(b) The Control Certificate shall be substantially in the form of
Exhibit A-2 to this Trust Agreement, with such changes and additions, thereto or
deletions therefrom as may be required by ordinary usage, custom, or practice.
SECTION 5.02 TRANSFER OF THE CONTROL CERTIFICATE.
Upon a transfer of the Control Certificate in accordance with this Section
5.02:
(a) The Control Party surrendering the Control Certificate (the
"Surrendering Party") (or its duly authorized attorney) shall surrender the
Control Certificate at the office or agency of the Trust along with a written
instrument of surrender, in a form satisfactory to at least one Administrative
Trustee, duly executed by the Surrendering Party. Thereupon, the Surrendering
Party shall cease to be the Control Party. The surrendered Control Certificate
shall be canceled and subsequently disposed of by the Administrative Trustee in
accordance with its customary practice; and
(b) Immediately upon such surrender, (i) the Initial Depositor, on
behalf of the Trust, shall execute and deliver in the name of the successor
Control Party a new Control Certificate dated the date of the delivery and (ii)
the successor Control Party shall evidence its acceptance by executing the new
Control Certificate and taking possession thereof. Thereupon, such entity shall
be deemed to be the Control Party.
No service charge shall be made for any registration of transfer or
surrender of the Control Certificate.
SECTION 5.03 NO ECONOMIC INTEREST IN THE TRUST.
(a) The Control Party, by virtue of its possession of the Control
Certificate, has a beneficial interest in the Trust; provided however, that the
Control Party, solely by virtue of its possession of the Control Certificate,
shall not be a trustee of the Trust nor shall it have an undivided beneficial
interest in the property of the Trust nor shall it be entitled to any financial
or monetary interest in the Trust, including but not limited to any distribution
from the Trust, any amounts paid on liquidation or termination of the Trust, or
any entitlement to the Subsidiary Debentures or payments thereon.
(b) Possession of the Control Certificate does not:
Entitle to the Control Party to income or assets of the
Trust;
Impose upon the Control Party any obligation as trustee with
respect to the Trust; or
Impose upon the Control Party any obligation to act as a
fiduciary (to the fullest extent of the law) with respect to the Trust
or the Preferred Trust Securities.
SECTION 5.04 CERTAIN DUTIES AND RESPONSIBILITIES.
The rights, duties, and responsibilities of the Control Party shall be only
as provided by the Control Certificate and this Trust Agreement. Notwithstanding
the foregoing, no provision of the Original Trust Agreement, the Control
Certificate, or this Trust Agreement shall require the Control Party to incur
any of its own funds in performance of its duties as Control Party. Whether or
not therein expressly so provided, every provision of the Control Certificate
and this Trust Agreement relating to the conduct of the Control party shall be
subject to the provisions of this Section.
SECTION 5.05 RIGHTS AND RESPONSIBILITIES OF THE CONTROL PARTY.
(a) Except as provided under this Section 5.05 or as otherwise
required by the Business Trust Act, the Trust Indenture Act or other applicable
law or provided by the Trust Agreement, the Control Party will have no voting
rights.
(b) The Control Party is entitled, in accordance with Article V of the
Trust Agreement, to vote to appoint, remove or replace any Trustee or to
increase or decrease the number of Trustees.
(c) Subject to Section 2.06 of the Trust Agreement and only after all
Trust Enforcement Events with respect to the Preferred Trust Securities have
been cured, waived, or otherwise eliminated and subject to the requirement of
the Property Trustee obtaining a tax opinion in certain circumstances set forth
in this paragraph (c), the Control Party has the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Property Trustee, or direct the exercise of any trust or power conferred upon
the Property Trustee under the Trust Agreement, including the right to direct
the Property Trustee, as holder of the Preferred Partnership Securities, to (i)
exercise the remedies available to it under the Limited Partnership Agreement as
a holder of the Preferred Partnership Securities, including the right to direct
the Special Representative of the Partnership as elected by the holders of the
Preferred Partnership Securities in accordance with the Limited Partnership
Agreement (A) to enforce the Partnership's creditors rights and other rights
with respect to the Affiliate Investment Instruments and any Investment
Guarantees, (B) to enforce the rights of the holders of the Preferred
Partnership Securities under the Partnership Guarantee, and (C) to enforce the
rights of the holders of the Preferred Partnership Securities to receive
distributions (if and to the extent such distributions have been declared out of
funds legally available therefor by the General Partner in its sole discretion)
on the Preferred Partnership Securities or (ii) consent to any amendment,
modification, or termination of the Limited Partnership Agreement or the
Preferred Partnership Securities where such consent shall be required. Except
with respect to directing the time, method, and place of conducting a proceeding
for a remedy, the Property Trustee shall be under no obligation to take any of
the actions described in clause 8.05(c)(i) and (ii) above unless the Property
Trustee has obtained an opinion of independent tax counsel to the effect that,
as a result of such action, for United States federal income tax purposes the
Trust will not fail to be classified as a grantor trust and each Holder will be
treated as owning an undivided beneficial ownership interest in the Preferred
Partnership Securities.
(d) If the Property Trustee fails to enforce its rights under the
Preferred Partnership Securities after the Control Party has made a written
request, the Control Party may directly institute a legal proceeding directly
against the Company, as General Partner of the Partnership or the Special
Representative, to enforce the Property Trustee's rights under the Preferred
Partnership Securities without first instituting any legal proceeding against
the Property Trustee or any other person or entity. Notwithstanding the
foregoing, if a Trust Enforcement Event has occurred and is continuing and such
event is attributable to the failure of an Investment Affiliate to make any
required payment when due on any Affiliate Investment Instrument or the failure
of the Company to make any required payment when due on any Investment
Guarantee, then the Control Party may directly institute a proceeding against
such Investment Affiliate or the Company for enforcement of payment with respect
to such Affiliate Investment Instrument or Investment Guarantee.
(e) A waiver of a Partnership Enforcement Event with respect to the
Preferred Partnership Securities will constitute a waiver of the corresponding
Trust Enforcement Event.
(f) No vote or consent of the Control Party shall be required for the
Trust to distribute Preferred Partnership Securities in accordance with the
Trust Agreement and the terms of the Preferred Trust Securities.
(g) In connection with the issue and sale of the Preferred Trust
Securities, the Control Party shall have the exclusive right and responsibility
to engage in the following activities:
to determine the States in which to take appropriate action
to qualify or register for sale all or part of the Preferred Trust
Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing any documents to be
executed and filed by the Trust, as the Control Party deems necessary
or advisable in order to comply with the applicable laws of any such
States; and
to select the investment banker or bankers to act as
underwriters with respect to the offer and sale of the Preferred Trust
Securities and to negotiate the terms of an underwriting agreement and
any pricing agreement providing for the sale of the Preferred Trust
Securities.
ARTICLE VI
TRUSTEES
SECTION 6.01 NUMBER OF TRUSTEES.
The number of Trustees initially shall be ___________ (___), and:
(a) at any time before the issuance of any Preferred Trust Securities,
the Initial Depositor may, by written instrument, increase or decrease the
number of Trustees; and
(b) after the issuance of any Preferred Trust Securities, the number
of Trustees may be increased or decreased by the Control Party; provided,
however, that the number of Trustees shall in no event be less than three (3);
provided, further, that (1) if required by the Business Trust Act, one Trustee
shall be the Delaware Trustee; (2) there shall be at least one Trustee who is an
employee or officer of, or is affiliated with the Company (each, an
"Administrative Trustee"); and (3) one Trustee shall be the Property Trustee for
so long as this Trust Agreement is required to qualify as an indenture under the
Trust Indenture Act, and such Property Trustee may also serve as Delaware
Trustee if it meets the applicable requirements.
SECTION 6.02 DELAWARE TRUSTEE.
If required by the Business Trust Act, the Delaware Trustee shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements of
applicable law,
provided, that if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee may also be the Delaware Trustee (in which case
Section 3.11 shall have no application).
SECTION 6.03 PROPERTY TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as
Property Trustee which shall:
not be an Affiliate of the Successor Depositor; and
be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted by
the Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or examining
authority referred to above, then for the purposes of this Section
6.03(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 6.03(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 6.07(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Control Party (as if it were the obligor referred to in
Section 310(b) of the Trust Indenture Act) shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
(d) The Preferred Trust Securities Guarantee and the Indenture (For
Unsecured Debt Securities) dated as of May 1, 1999 of TXU Europe and TXU Eastern
Funding Company to The Bank of New York, as trustee, shall be deemed to be
specifically described in this Trust Agreement for purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Bank of New York
SECTION 6.04 QUALIFICATIONS OF ADMINISTRATIVE TRUSTEES AND DELAWARE TRUSTEE
GENERALLY.
Each Administrative Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware 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
Authorized Officers.
SECTION 6.05 ADMINISTRATIVE TRUSTEES.
The initial Administrative Trustees shall be:
-----------------------------
-----------------------------
-----------------------------
Except as expressly set forth in this Trust Agreement and except if a
meeting of the Administrative Trustees is called with respect to any matter over
which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
SECTION 6.06 DELAWARE TRUSTEE.
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
SECTION 6.07 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 6.07(b), Trustees may be appointed or removed
without cause at any time:
until the issuance of any Preferred Trust Securities, by
written instrument executed by the Initial Depositor; and
after the issuance of any Preferred Trust Securities, by the
Control Party.
(b) (i) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 6.07(a) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.03 (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Administrative Trustees and the Successor Depositor; and
the Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 6.07(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under
Sections 6.02 and 6.04 (a "Successor Delaware Trustee") has been
appointed and has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and delivered to the
Administrative Trustees and the Successor Depositor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Successor Depositor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein; provided,
however, that:
No such resignation of the Trustee that acts as the Property Trustee
shall be effective:
(A) until a Successor Property Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor Property
Trustee and delivered to the Trust, the Successor Depositor and the resigning
Property Trustee; or
(B) until the assets of the Trust have been completely liquidated
and the proceeds thereof distributed to the Holders; and
no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been appointed
and has accepted such appointment by instrument executed by such Successor
Delaware Trustee and delivered to the Trust, the Successor Depositor and the
resigning Delaware Trustee.
(d) The Control Party shall use its best efforts to promptly appoint a
Successor Delaware Trustee or Successor Property Trustee, as the case may be, if
the Property Trustee or the Delaware Trustee delivers an instrument of
resignation in accordance with this Section 6.07.
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
6.07 within 60 days after delivery to the Successor Depositor and the Trust of
an instrument of resignation, the resigning Property Trustee or Delaware
Trustee, as applicable, may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor Delaware Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or successor Delaware
Trustee, as the case may be.
SECTION 6.08 VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.01, or if the number of Trustees
is increased pursuant to Section 6.01, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two, a majority of the Administrative Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 6.07.
SECTION 6.09 EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul, dissolve or terminate the Trust. Whenever a vacancy in the
number of Administrative Trustees shall occur, until such vacancy is filled by
the appointment of an Administrative Trustee in accordance with Section 6.07,
the Administrative Trustees in office, regardless of their number, 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 6.10 MEETINGS.
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 48 hours before such meeting. Notice of
any telephonic meetings of the Administrative Trustees or any committee thereof
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Trust Agreement, any action of the Administrative
Trustees may be taken at a meeting by vote of a majority of the Administrative
Trustees present (whether in person or by telephone) and eligible to vote with
respect to such matter; provided, that a Quorum is present, or without a meeting
by the unanimous written consent of the Administrative Trustees. Notwithstanding
the foregoing, any and all actions of the Administrative Trustees may be taken
by the unanimous written consent of all Administrative Trustees.
SECTION 6.11 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
3.06, 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 or to officers of the Trust 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 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Property Trustee or the Delaware Trustee, as
the case may be, may be merged or converted or with which either may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Property Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Property Trustee or
the Delaware Trustee, as the case may be, hereunder; provided, that such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
ARTICLE VII
SECTION 7.01 DISTRIBUTIONS.
(a) [Holders shall be entitled to receive cash distributions on a Pro
Rata basis of all amounts distributed to the Trust including amounts received
from (i) the Partnership on the Preferred Partnership Securities (which provide
for entitlements to share in net income of the Partnership at the rate per annum
of _____% of the principal amount of the Preferred Partnership Securities), and
(ii) the Company on the Partnership Guarantees.] Distributions on the Preferred
Trust Securities shall be payable to the extent that the Partnership makes a
distribution on the Preferred Partnership Securities held by the Property
Trustee or the Company makes a payment under the Partnership Guarantee (the
amount of any such partnership distribution or guarantee payment being a
"Payment Amount"). The Trust shall, and the Property Trustee is directed to,
utilizing all funds that are available for that purpose, make a Pro Rata
distribution of the Payment Amount to Holders.
(b) Distributions on the Preferred Trust Securities will be payable
quarterly in arrears on each ____________, ____________, ____________ and
____________, commencing ________, _________, when, as and if available for
payment, by the Property Trustee, except as otherwise described below.
(c) Amounts available to the Trust for distribution to the Holders
will be limited to payments received by the Trust from the Partnership on the
Preferred Partnership Securities or from the Company on the Partnership
Guarantees paid by the Company to the Trust. If the Property Trustee, as the
holder of the Preferred Partnership Securities for the benefit of the Holders,
receives notice of any determination by the Partnership not to pay distributions
on such Preferred Partnership Securities, the Property Trustee shall give notice
of such determination to the Holders.
(d) Distributions on the Preferred Trust Securities will be payable to
the Holders thereof as they appear on the books and records of the Trust on the
relevant record dates, which relevant record dates, as long as the Preferred
Trust Securities remain in book-entry only form, will be one Business Day prior
to the relevant payment dates. Such distributions will be paid through the
Property Trustee who will hold amounts received in respect of the Preferred
Partnership Securities in the Property Account for the benefit of the Holders.
In the event that the Preferred Trust Securities do not remain in book-entry
only form, the relevant record dates shall be the 15th day of the month of the
relevant payment dates. In the event that any date on which distributions are
payable on the Preferred Trust Securities is not a Business Day, payment of the
distribution payable on such date will be made on the next succeeding day which
is a Business Day (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, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
ARTICLE VIII
ISSUANCE OF PREFERRED TRUST SECURITIES
SECTION 8.01 DESIGNATION AND GENERAL PROVISIONS REGARDING THE PREFERRED
TRUST SECURITIES.
(a) The Administrative Trustees shall on behalf of the Trust issue one
class of preferred securities representing undivided beneficial ownership
interests in the assets of the Trust with an aggregate Liquidation Amount with
respect to the assets of the Trust of _______dollars ($______) and a Liquidation
Amount with respect to the assets of the Trust of $25 per preferred security,
are hereby designated for the purpose of identification only as _______% Trust
Originated Preferred Securities (the "Preferred Trust Securities"). The
Preferred Trust Security Certificates evidencing the Preferred Trust Securities
shall be substantially in the form of Exhibit A-1 to the Trust Agreement, with
such changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice or to conform to the rules of any stock
exchange on which the Preferred Trust Securities are listed.
(b) The Trust shall issue no securities or other interests in the
assets of the Trust other than the Preferred Trust Securities.
(c) Any Administrative Trustee shall sign the Preferred Trust
Securities for the Trust by manual or facsimile signature. In case any
Administrative Trustee of the Trust who shall have signed any of the Preferred
Trust Securities shall cease to be an Administrative Trustee before the
Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such Administrative Trustee; and any Certificate may be
signed on behalf of the Trust by such persons who, at the actual date of
execution of such Preferred Trust Security, shall be the Administrative Trustees
of the Trust, although at the date of the execution and delivery of the Trust
Agreement any such person was not such an Administrative Trustee. 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 their execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the
Administrative Trustees may deem appropriate, or as may be required to comply
with any law or with any rule or regulation of any stock exchange on which
Preferred Trust Securities may be listed, or to conform to usage.
A Preferred Trust Security shall not be valid until authenticated by the
manual signature of an authorized officer of the Property Trustee. Such
signature shall be conclusive evidence that the Preferred Trust Security has
been authenticated under this Trust Agreement.
Upon a written order of the Trust signed by one Administrative Trustee, the
Property Trustee shall authenticate the Preferred Trust Securities for original
issue. The aggregate number of Preferred Trust Securities outstanding at any
time shall not exceed the number set forth in the terms of the Preferred Trust
Securities.
The Property Trustee may appoint an authenticating agent acceptable to the
Trust to authenticate Preferred Trust Securities. An authenticating agent may
authenticate Preferred Trust Securities whenever the Property Trustee may do so.
Each reference in this Trust Agreement to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee to deal with the Control Party or an Affiliate of
the Control Party.
(d) The consideration received by the Trust for the issuance of the Preferred
Trust Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(e) Upon issuance of the Preferred Trust Securities as provided in this Trust
Agreement, the Preferred Trust Securities so issued shall be deemed to be
validly issued, fully paid and non-assessable, subject to Section 11.01.
(f) Every Person, by virtue of having become a Holder or a Preferred Trust
Security Beneficial Owner in accordance with the terms of this Trust Agreement,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Trust Agreement.
SECTION 8.02 REDEMPTION OF PREFERRED TRUST SECURITIES.
(a) Upon a purchase of the Preferred Partnership Securities by the Partnership
upon redemption or otherwise, the proceeds from such purchase shall be
simultaneously applied Pro Rata to redeem Preferred Trust Securities having an
aggregate Liquidation Amount equal to the Preferred Partnership Securities so
purchased or redeemed at an amount equal to $25 per Preferred Partnership
Security plus an amount equal to accumulated and unpaid distributions, including
any compounding thereon, through the date of the redemption or such lesser
amount as shall be received by the Trust in respect of the Preferred Partnership
Securities so purchased or redeemed (the "Redemption Price"). Holders will be
given not less than 30 nor more than 60 days notice of such redemption.
(b) If fewer than all the outstanding Preferred Trust Securities are to be so
redeemed, the Preferred Trust Securities to be redeemed will be redeemed as
described in Section 8.03 below; provided, that fewer than all of the
outstanding Preferred Trust Securities may not be redeemed unless all
accumulated and unpaid distributions have been paid on all Preferred Trust
Securities for all quarterly distribution periods terminating on or prior to the
date of redemption.
(c) If, at any time, a Trust Special Event shall occur and be continuing, the
Administrative Trustees shall, unless the Preferred Partnership Securities are
redeemed in the limited circumstances described below, within 90 days following
the occurrence of such Trust Special Event elect to either (i) dissolve the
Trust upon not less than 30 nor more than 60 days notice with the result that,
after satisfaction of creditors, if any, of the Trust, Preferred Partnership
Securities would be distributed on a Pro Rata basis to the Holders in
liquidation of such Holders' interests in the Trust; provided, however, that if
at the time there is available to the Trust the opportunity to eliminate, within
such 90-day period, the Trust Special Event by taking some ministerial action,
such as filing a form or making an election, or pursuing some other similar
reasonable measure which in the sole judgment of the Control Party has or will
cause no adverse effect on the Trust, the Partnership, the Control Party or the
Holders and will involve no material cost, the Trust will pursue such measure in
lieu of dissolution or (ii) cause the Preferred Trust Securities to remain
outstanding; provided, that in the case of this clause (ii), the Successor
Depositor shall pay any and all expenses incurred by or payable by the Trust
attributable to the Trust Special Event. Furthermore, if in the case of the
occurrence of a Trust Tax Event, the Administrative Trustees have received a
Trust Redemption Tax Opinion, then the General Partner shall have the right,
within 90 days following the occurrence of such Trust Tax Event, to elect to
cause the Partnership to redeem the Preferred Partnership Securities in whole
(but not in part) for cash upon not less than 30 nor more than 60 days notice
and promptly following such redemption, the Preferred Trust Securities will be
redeemed by the Trust at the Redemption Price.
(d) If the Preferred Partnership Securities are distributed to the Holders, the
Successor Depositor will use its best efforts to cause the Preferred Partnership
Securities to be listed on The New York Stock Exchange, Inc. and the Luxembourg
Stock Exchange or on such other national securities exchange or similar
organization as the Preferred Trust Securities are then listed or quoted.
(e) On the date fixed for any distribution of Preferred Partnership Securities,
upon dissolution of the Trust, (i) the Preferred Trust Securities will no longer
be deemed to be outstanding and (ii) certificates representing Preferred Trust
Securities will be deemed to represent the Preferred Partnership Securities
having a liquidation preference equal to the stated Liquidation Amount of such
Preferred Trust Securities until such certificates are presented to the
Successor Depositor or its agent for transfer or reissuance.
SECTION 8.03 REDEMPTION PROCEDURES.
(a) Notice of any redemption of, or notice of distribution of Preferred
Partnership Securities in exchange for, the Preferred Trust Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail to each
Holder to be redeemed or exchanged not fewer than 30 nor more than 60 days
before the date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the Preferred Partnership
Securities. For purposes of the calculation of the date of redemption or
exchange and the dates on which notices are given pursuant to this Section 8.03,
a Redemption/ Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders. Each
Redemption/Distribution Notice shall be addressed to the Holders at the address
of each such Holder appearing in the books and records of the Trust. No defect
in the Redemption/ Distribution Notice or in the mailing of either thereof with
respect to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(b) In the event that fewer than all the outstanding Preferred Trust Securities
are to be redeemed, the Preferred Trust Securities to be redeemed shall be
redeemed Pro Rata from each Holder, provided, that in respect of Preferred Trust
Securities registered in the name of and held of record by DTC or its nominee
(or any successor Clearing Agency or its nominee) or any nominee, the
distribution of the proceeds of such redemption will be made to each Clearing
Agency Participant (or Person on whose behalf such nominee holds such
securities) in accordance with the procedures applied by such agency or nominee.
In the event that the Preferred Trust Securities do not remain in book-entry
only form and fewer than all of the outstanding Preferred Trust Securities are
to be redeemed, the Preferred Trust Securities shall be redeemed Pro Rata or
pursuant to the rules of any securities exchange on which the Preferred Trust
Securities are listed.
(c) If Preferred Trust Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the Preferred
Partnership Securities are redeemed as set out in this Section 8.03 (which
notice will be irrevocable), then (A) while the Preferred Trust Securities are
in book-entry only form, by 12:00 noon, New York City time, on the redemption
date, the Property Trustee will deposit irrevocably with the DTC or its nominee
(or successor Clearing Agency or its nominee) funds sufficient to pay the
applicable Redemption Price with respect to the Preferred Trust Securities and
will give the DTC irrevocable instructions and authority to pay the Redemption
Price to the Holders, and (B) with respect to Preferred Trust Securities issued
in definitive form, the Property Trustee will pay the relevant Redemption Price
to the Holders by check mailed to the address of the relevant Holder appearing
on the books and records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds deposited as
required, if applicable, then immediately prior to the close of business on the
date of such deposit, or on the redemption date, as applicable, distributions
will cease to accumulate on the Preferred Trust Securities so called for
redemption and all rights of Holders will cease, except the right of the Holders
to receive the Redemption Price, but without interest on such Redemption Price.
If any date fixed for redemption of Preferred Trust Securities is not a Business
Day, then payment of the Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of the amount payable subject to such delay) except
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date fixed for redemption. If payment of the
Redemption Price in respect of any Preferred Trust Securities is improperly
withheld or refused and not paid either by the Property Trustee or by the
Successor Depositor as guarantor pursuant to the relevant Trust Guarantee,
distributions on such Preferred Trust Securities will continue to accumulate at
the then applicable rate from the original redemption date to the actual date of
payment, in which case the actual payment date will be considered the date fixed
for redemption for purposes of calculating the Redemption Price. For these
purposes, the applicable Redemption Price shall not include distributions which
are being paid to Holders who were Holders on a relevant record date. Upon
satisfaction of the foregoing conditions, then immediately prior to the close of
business on the date of such deposit or payment, all rights of Holders so called
for redemption will cease, except the right of the Holders to have received the
Redemption Price, but without interest on such Redemption Price, and from and
after the date fixed for redemption, such Preferred Trust Securities will not
accumulate distributions or bear interest.
Neither the Administrative Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Preferred Trust
Securities that have been called for redemption.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Company or its
affiliates may at any time and from time to time purchase outstanding Preferred
Trust Securities by tender, in the open market or by private agreement.
SECTION 8.04 VOTING RIGHTS OF PREFERRED TRUST SECURITIES.
(a) Except as provided under this Article VIII and as otherwise
required by the Business Trust Act, the Trust Indenture Act and other applicable
law, the Holders will have no voting rights.
(b) Subject to the requirement of the Property Trustee obtaining a tax
opinion in certain circumstances set forth in Section 8.04(d) below, the Holders
of a Majority in Liquidation Amount of the Preferred Trust Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or direct the exercise of any trust or
power conferred upon the Property Trustee under the Trust Agreement, including
the right to direct the Property Trustee, as holder of the Preferred Partnership
Securities, to (i) exercise the remedies available to it under the Limited
Partnership Agreement as a holder of the Preferred Partnership Securities,
including the right to direct the Special Representative of the Partnership as
elected by the holders of the Preferred Partnership Securities in accordance
with the Limited Partnership Agreement (A) to enforce the Partnership's
creditors rights and other rights with respect to the Affiliate Investment
Instruments and any Investment Guarantees, (B) to enforce the rights of the
holders of the Preferred Partnership Securities under the Partnership Guarantee,
and (C) to enforce the rights of the holders of the Preferred Partnership
Securities to receive distributions (if and to the extent such distributions
have been declared out of funds legally available therefor by the General
Partner in its sole discretion) on the Preferred Partnership Securities or (ii)
consent to any amendment, modification, or termination of the Limited
Partnership Agreement or the Preferred Partnership Securities where such consent
shall be required; provided, however, that where a consent or action under the
Limited Partnership Agreement would require the consent or act of the holders of
more than a majority of the aggregate liquidation preference of Preferred
Partnership Securities affected thereby, only the Holders of the percentage of
the aggregate stated Liquidation Amount of the Preferred Trust Securities which
is at least equal to the percentage of aggregate liquidation preference required
under the Limited Partnership Agreement may direct the Property Trustee to give
such consent or take such action.
(c) If the Property Trustee fails to enforce its rights under the
Preferred Partnership Securities after a Holder of record has made a written
request, such Holder of record may institute a legal proceeding directly against
the General Partner or the Special Representative, to enforce the Property
Trustee's rights under the Limited Partnership Agreement without first
instituting any legal proceeding against the Property Trustee or any other
person or entity. Notwithstanding the foregoing, if a Trust Enforcement Event
has occurred and is continuing and such event is attributable to the failure of
an Investment Affiliate to make any required payment when due on any Affiliate
Investment Instrument or the failure of the Company to make any required payment
when due on any Investment Guarantee, then a Holder may directly institute a
proceeding against such Investment Affiliate or the Company for enforcement of
payment with respect to such Affiliate Investment Instrument or Investment
Guarantee.
(d) The Property Trustee shall notify all Holders of any notice of any
Partnership Enforcement Event received from the General Partner with respect to
the Preferred Partnership Securities, the Affiliate Investment Instruments and
the Investment Guarantees. Such notice shall state that such Partnership
Enforcement Event also constitutes a Trust Enforcement Event. Except with
respect to directing the time, method, and place of conducting a proceeding for
a remedy, the Property Trustee shall be under no obligation to take any of the
actions described in clause 8.04(b)(i) and (ii) above unless the Property
Trustee has obtained an opinion of independent tax counsel to the effect that as
a result of such action, the Trust will not fail to be classified as a grantor
trust for United States federal income tax purposes and that after such action
each Holder will continue to be treated as owning an undivided beneficial
ownership interest in the Preferred Partnership Securities.
(e) In the event the consent of the Property Trustee, as the holder of
the Preferred Partnership Securities, is required under the Limited Partnership
Agreement with respect to any amendment, modification or termination of the
Limited Partnership Agreement, the Property Trustee shall request the direction
of the Holders with respect to such amendment, modification or termination and
shall vote with respect to such amendment, modification or termination as
directed by a Majority in Liquidation Amount of the Preferred Trust Securities
voting together as a single class; provided, however, that where a consent under
the Limited Partnership Agreement would require the consent of the holders of
more than a majority of the aggregate liquidation preference of the Preferred
Partnership Securities, the Property Trustee may only give such consent at the
direction of the Holders of at least the same proportion in aggregate stated
Liquidation Amount of the Preferred Trust Securities. The Property Trustee shall
not take any such action in accordance with the directions of the Holders unless
the Property Trustee has obtained an opinion of tax counsel to the effect that,
as a result of such action, the Trust will not be classified as other than a
grantor trust for United States federal income tax purposes.
(f) A waiver of a Partnership Enforcement Event with respect to the
Preferred Partnership Securities will constitute a waiver of the corresponding
Trust Enforcement Event.
(g) Any required approval or direction of Holders may be given at a
separate meeting of Holders convened for such purpose, at a meeting of all of
the Holders or pursuant to written consent. The Administrative Trustees will
cause a notice of any meeting at which Holders are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record. Each such notice will include a statement
setting forth the following information: (i) the date of such meeting or the
date by which such action is to be taken; (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought; and (iii) instructions
for the delivery of proxies or consents.
(h) No vote or consent of the Holders will be required for the Trust
to redeem and cancel Preferred Trust Securities or distribute Preferred
Partnership Securities in accordance with the Trust Agreement.
(i) Notwithstanding that Holders are entitled to vote or consent under
any of the circumstances described above, any of the Preferred Trust Securities
that are beneficially owned at such time by the Company or any entity directly
or indirectly controlled by, or under direct or indirect common control with,
the Company, shall not be entitled to vote or consent and shall, for purposes of
such vote or consent, be treated as if such Preferred Trust Securities were not
outstanding; provided, however, that persons (other than affiliates of the
Company) to whom the Company or any of its subsidiaries have pledged Preferred
Trust Securities may vote or consent with respect to such pledged Preferred
Trust Securities pursuant to the terms of such pledge.
(j) Holders will have no rights to appoint or remove the
Administrative Trustees, who may be appointed, removed or replaced solely by the
Control Party.
SECTION 8.05 PAYING AGENT.
In the event that the Preferred Trust Securities are not in book-entry only
form, the Trust shall maintain in the Borough of Manhattan, City of New York,
State of New York, an office or agency where the Preferred Trust Securities may
be presented for payment ("Paying Agent"). The Trust may appoint the Paying
Agent and may appoint one or more additional paying agents in such other
locations as it shall determine. The term "Paying Agent" includes any additional
paying agent. The Trust may change any Paying Agent without prior notice to any
Holder. The Trust shall notify the Property Trustee of the name and address of
any Paying Agent not a party to this Trust Agreement. If the Trust fails to
appoint or maintain another entity as Paying Agent, the Property Trustee shall
act as such. The Trust or any of its Affiliates may act as Paying Agent. The
Bank of New York shall initially act as Paying Agent for the Preferred Trust
Securities.
SECTION 8.06 LISTING.
The Successor Depositor shall use its best efforts to cause the Preferred
Trust Securities to be listed for quotation on The New York Stock Exchange, Inc.
SECTION 8.07 ACCEPTANCE OF GUARANTEE AND AGREEMENTS, LIMITED PARTNERSHIP
AGREEMENT.
Each Holder, by the acceptance thereof, agrees to the provisions of the
applicable Trust Guarantee, the Partnership Guarantee, the Affiliate Investment
Instruments and the Investment Guarantees, respectively, including the
subordination provisions therein.
ARTICLE IX
DISSOLUTION AND LIQUIDATION OF THE TRUST
SECTION 9.01 DISSOLUTION OF TRUST.
(a) The Trust shall dissolve:
upon the bankruptcy of the Successor Depositor;
upon the filing of a certificate of dissolution or its equivalent
with respect to the Successor Depositor, after having obtained the consent of at
least a Majority in Liquidation Amount of the Preferred Trust Securities, voting
together as a single class, to dissolve the Trust, or the revocation of the
Successor Depositor 's charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
upon the entry of a decree of judicial dissolution of the
Successor Depositor or the Trust;
when all of the Preferred Trust Securities shall have been called
for redemption and the amounts necessary for redemption thereof shall have been
paid to the Holders in accordance with the terms of the Preferred Trust
Securities;
upon the election of the Administrative Trustees, following the
occurrence and continuation of a Trust Special Event, pursuant to which the
Trust shall have been dissolved in accordance with the terms of the Preferred
Trust Securities and all of the Preferred Partnership Securities shall have been
distributed to the Holders in exchange for all of the Preferred Trust
Securities; or
before the issuance of any Preferred Trust Securities, with the
consent of all of the Administrative Trustees and the Control Party.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 9.01(a) and after the completion of the winding up of the
Trust, the Trustees shall file a certificate of cancellation with the Secretary
of State of the State of Delaware.
(c) The provisions of Section 3.09 and Article XI shall survive the
termination of the Trust.
SECTION 9.02 LIQUIDATION DISTRIBUTION UPON TERMINATION AND DISSOLUTION OF
THE TRUST.
(a) In the event of any voluntary or involuntary dissolution of the
Trust (each a "Trust Liquidation"), the Holders on the date of the Trust
Liquidation will be entitled to receive, out of the assets of the Trust
available for distribution to Holders after satisfaction of the Trusts'
liabilities and creditors, distributions in cash or other immediately available
funds in an amount equal to the aggregate of the stated Liquidation Amount of
$25 per Preferred Trust Security plus accumulated and unpaid distributions
thereon to the date of payment (such amount being the "Trust Liquidation
Distribution"), unless, in connection with such Trust Liquidation, Preferred
Partnership Securities shall be distributed on a Pro Rata basis to the Holders
in exchange for such Preferred Trust Securities.
(b) If, upon any such Trust Liquidation, the Trust Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Trust Liquidation Distribution, then the
amounts payable directly by the Trust on the Preferred Trust Securities shall be
paid on a Pro Rata basis.
ARTICLE X
TRANSFER OF INTERESTS
SECTION 10.01 TRANSFER OF PREFERRED TRUST SECURITIES.
Subject to this Article X, Preferred Trust Securities shall be freely
transferable.
SECTION 10.02 TRANSFER OF CERTIFICATES.
The Administrative Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Administrative Trustees
may require) in respect of any tax or other government charges that may be
imposed in relation to it. Upon surrender for registration of transfer of any
Certificate, the Administrative Trustees shall cause one or more new
Certificates to be issued in the name of the designated transferee or
transferees. Every Certificate surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the
Administrative Trustees duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Certificate surrendered for registration of
transfer shall be canceled by the Administrative Trustees. A transferee of a
Certificate shall be entitled to the rights and subject to the obligations of a
Holder hereunder upon the receipt by such transferee of a Certificate. By
acceptance of a Certificate, each transferee shall be deemed to have agreed to
be bound by this Trust Agreement.
SECTION 10.03 DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole Holder of such
Certificate and of the Preferred Trust Securities represented by such
Certificate for purposes of receiving distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Certificate or in the Preferred Trust
Securities represented by such Certificate on the part of any Person, whether or
not the Trust shall have actual or other notice thereof.
SECTION 10.04 BOOK ENTRY INTERESTS.
Unless otherwise specified in the terms of the Preferred Trust Securities,
the Preferred Trust Securities Certificates, on original issuance, will be
issued in the form of one or more fully registered, global Preferred Trust
Security Certificates (each a "Global Certificate"), to be delivered to DTC, the
initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the Trust
in the name of Cede & Co., the nominee of DTC, and no Preferred Trust Security
Beneficial Owner will receive a definitive Preferred Trust Security Certificate
representing such Preferred Trust Security Beneficial Owner's interests in such
Global Certificates, except as provided in Section 10.07. Unless and until
definitive, fully registered Preferred Trust Security Certificates (the
"Definitive Preferred Trust Security Certificates") have been issued to the
Preferred Trust Security Beneficial Owners pursuant to Section 10.07:
(a) the provisions of this Section 10.04 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Trust Agreement (including the payment
of distributions on the Global Certificates and receiving approvals, votes or
consents hereunder) as the Holder and the sole Holder of the Global Certificates
and shall have no obligation to the Preferred Trust Security Beneficial Owners;
(c) to the extent that the provisions of this Section 10.04 conflict
with any other provisions of this Trust Agreement, the provisions of this
Section 10.04 shall control; and
(d) the rights of the Preferred Trust Security Beneficial Owners shall
be exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Trust Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and the Clearing Agency shall receive and transmit payments of
distributions on the Global Certificates to such Clearing Agency Participants.
The Clearing Agency will make book entry transfers among the Clearing Agency
Participants; provided, that solely for the purposes of determining whether the
Holders of the requisite amount of Preferred Trust Securities have voted on any
matter provided for in this Trust Agreement, so long as Definitive Preferred
Trust Security Certificates have not been issued, the Trustees may conclusively
rely on, and shall be fully protected in relying on, any written instrument
(including a proxy) delivered to the Trustees by the Clearing Agency setting
forth the Preferred Trust Security Beneficial Owners' votes or assigning the
right to vote on any matter to any other Persons either in whole or in part.
SECTION 10.05 NOTICES TO CLEARING AGENCY.
Whenever a notice or other communication to the Holders is required under
this Trust Agreement, unless and until Definitive Preferred Trust Security
Certificates shall have been issued to the Preferred Trust Security Beneficial
Owners pursuant to Section 10.07, the Administrative Trustees shall give all
such notices and communications specified herein to be given to the Holders to
the Clearing Agency, and shall have no notice obligations to the Preferred Trust
Security Beneficial Owners.
SECTION 10.06 APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Preferred Trust Securities, the Administrative
Trustees may, in their sole discretion, appoint a successor Clearing Agency with
respect to such Preferred Trust Securities.
SECTION 10.07 DEFINITIVE PREFERRED TRUST SECURITY CERTIFICATES.
If:
(a) a Clearing Agency elects to discontinue its services as securities
depositary with respect to the Preferred Trust Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 10.06 or
(b) the Administrative Trustees elect after consultation with the
Control Party to terminate the book entry system through the Clearing Agency
with respect to the Preferred Trust Securities,
(c) there is a Trust Enforcement Event, then:
(d) Definitive Preferred Trust Security Certificates shall be prepared
by the Administrative Trustees on behalf of the Trust with respect to such
Preferred Trust Securities; and
(e) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Administrative Trustees shall
cause Definitive Preferred Trust Security Certificates to be delivered to
Preferred Trust Security Beneficial Owners in accordance with the instructions
of the Clearing Agency. Neither the Trustees nor the Trust shall be liable for
any delay in delivery of such instructions and each of them may conclusively
rely on and shall be fully protected in relying on, said instructions of the
Clearing Agency. The Definitive Preferred Trust Security 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 their
execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the
Administrative Trustees may deem appropriate, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which Preferred Trust Securities may
be listed, or to conform to usage.
SECTION 10.08 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
(a) any mutilated Certificates should be surrendered to the
Administrative Trustees, or if the Administrative Trustees shall receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate; and
(b) there shall be delivered to the Administrative Trustees such
security or indemnity as may be required by them to keep each of them harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Administrative Trustee on behalf of the Trust shall
execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 10.08,
the Administrative Trustees 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 Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Preferred Trust Securities, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
ARTICLE XI
LIMITATION OF LIABILITY OF
HOLDERS, TRUSTEES OR OTHERS
SECTION 11.01 LIABILITY.
(a) Except as expressly set forth in this Trust Agreement, the Trust
Guarantees and the terms of the Preferred Trust Securities, the Initial
Depositor, the Successor Depositor, the Control Party and the Trustees shall not
be:
personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders which shall be made solely
from assets of the Trust; and
required to pay to the Trust or to any Holder any deficit upon
dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
shall be entitled to the same limitation of personal liability extended to
shareholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 11.02 EXCULPATION.
(a) No Company Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Company Indemnified Person in good faith on behalf of the Trust
and in a manner such Company Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Company Indemnified Person by this
Trust Agreement or by law, except that a Company Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of such Company
Indemnified Person's gross negligence (or, in the case of the Property Trustee,
negligence) or willful misconduct with respect to such acts or omissions. An
Indemnified Person shall be fully protected in relying in good faith upon the
records of the Trust and upon such information, opinions, reports or statements
presented to the Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
Holders might properly be paid.
SECTION 11.03 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:
whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Person; or
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,
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.
(c) Whenever in this Trust Agreement an Indemnified Person is
permitted or required to make a decision:
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
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.
SECTION 11.04 INDEMNIFICATION.
(a) (i)To the fullest extent permitted by applicable law, the
Successor Depositor shall indemnify and hold harmless any Company Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Trust, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
The Successor Depositor shall indemnify, to the fullest extent
permitted by law, any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such Court of Chancery or such other court shall deem proper.
To the extent that a Company Indemnified Person shall be successful on
the merits or otherwise (including dismissal of an action without prejudice or
the settlement of an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and (ii) of this
Section 11.04(a), or in defense of any claim, issue or matter therein, he shall
be indemnified, to the fullest extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Any indemnification under paragraphs (i) and (ii) of this Section
11.04(a) (unless ordered by a court) shall be made by the Successor Depositor
only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct set forth in paragraphs
(i) and (ii). Such determination shall be made by the Administrative Trustees by
a majority vote of a quorum consisting of such Administrative Trustees who were
not parties to such action, suit or proceeding, if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written opinion, or by
the Control Party.
Expenses (including attorneys' fees) incurred by a Company Indemnified
Person in defending a civil, criminal, administrative or investigative action,
suit or proceeding referred to in paragraphs (i) and (ii) of this Section
11.04(a) shall be paid by the Successor Depositor in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Successor Depositor as authorized in this Section 11.04(a). Notwithstanding the
foregoing, no advance shall be made by the Successor Depositor if a
determination is reasonably and promptly made by the Administrative Trustees by
a majority vote of a quorum of disinterested Administrative Trustees, if such a
quorum is not obtainable, or, even if obtainable, if a quorum of disinterested
Administrative Trustees so directs, by independent legal counsel in a written
opinion or the Control Party, that, based upon the facts known to the
Administrative Trustees, counsel or the Control Party at the time such
determination is made, such Company Indemnified Person acted in bad faith or in
a manner that such person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal proceeding, that such
Company Indemnified Person believed or had reasonable cause to believe his
conduct was unlawful. In no event shall any advance be made in instances where
the Administrative Trustees, independent legal counsel or the Control Party
reasonably determine that such person deliberately breached his duty to the
Trust or the Control Party.
The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 11.04(a) shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
shareholders or disinterested directors of the Successor Depositor or Holders or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office. All rights to indemnification under
this Section 11.04(a) shall be deemed to be provided by a contract between the
Successor Depositor and each Company Indemnified Person who serves in such
capacity at any time while this Section 11.04(a) is in effect. Any repeal or
modification of this Section 11.04(a) shall not affect any rights or obligations
then existing.
The Successor Depositor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified Person
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Successor
Depositor would have the power to indemnify him against such liability under the
provisions of this Section 11.04(a).
For purposes of this Section 11.04(a), references to "the Trust" shall
include, in addition to the resulting or surviving entity, any constituent
entity (including any constituent of a constituent) absorbed in a consolidation
or merger, so that any person who is or was a director, trustee, officer or
employee of such constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions of this Section
11.04(a) with respect to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had continued.
The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 11.04(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Company
Indemnified Person and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(b) The Successor Depositor agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee
and the Delaware Trustee, and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians, nominees or agents of
the Property Trustee and the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to
hold each Fiduciary Indemnified Person harmless against, any loss, damage,
claim, liability or expense including taxes (other than taxes based on the
income of the Trustee) incurred without negligence or bad faith on the part of
the Trustee arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against or investigating any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 11.04(b) shall survive the satisfaction
and discharge of this Trust Agreement.
SECTION 11.05 OUTSIDE BUSINESSES.
Any Covered Person, the Initial Depositor, the Successor Depositor, the
Delaware Trustee and the Property Trustee may engage in or possess an interest
in other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders shall have no rights by virtue of this Trust Agreement in and to
such independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the Trust,
shall not be deemed wrongful or improper. None of the Covered Person, the
Initial Depositor, the Successor Depositor, the Delaware Trustee, or the
Property Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Initial Depositor, the Successor Depositor, the Delaware Trustee and the
Property Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person, the Delaware Trustee and
the Property Trustee may engage or be interested in any financial or other
transaction with the Initial Depositor or any Affiliate of the Initial
Depositor, or may act as depositary for, trustee or agent for, or act on any
committee or body of Holders of, securities or other obligations of the Initial
Depositor or its Affiliates.
ARTICLE XII
ACCOUNTING
SECTION 12.01 FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year.
SECTION 12.02 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Administrative
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The books of account and the records of the Trust shall be
examined by and reported upon as of the end of each Fiscal Year of the Trust by
a firm of independent certified public accountants selected by the
Administrative Trustees.
(b) Within 60 days after of each year commencing, the Property Trustee
shall provide to the Holders such reports as are required by Section 313 of the
Trust Indenture Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
(c) The Administrative Trustees shall cause to be duly prepared and
delivered to each of the Holders, any annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Preferred Trust Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Administrative Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Administrative Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Administrative Trustees on behalf of the Trust with any state or
local taxing authority.
SECTION 12.03 BANKING.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Preferred Partnership Securities held by the Property Trustee
shall be made directly to the Property Account and no other funds of the Trust
shall be deposited in the Property Account. The sole signatories for such
accounts shall be designated by the Administrative Trustees; provided, however,
that the Property Trustee shall designate the signatories for the Property
Account.
SECTION 12.04 WITHHOLDING.
The Trust and the Administrative Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Administrative Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld shall
be deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed over withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual distributions made, the Trust may reduce
subsequent distributions by the amount of such withholding. Notwithstanding
anything herein to the contrary, the Trust and the Administrative Trustees
shall, absent receipt of an opinion of nationally recognized tax counsel to the
contrary, withhold thirty percent (30%) (or such other rate as may be imposed as
a result of an amendment to the Code or such lower rate as may be imposed under
an applicable income tax treaty) on the gross amount of any distributions on
Preferred Trust Securities held by a Holder that is not a "United States person"
within the meaning of Section 7701(a)(30) of the Code.
ARTICLE XIII
AMENDMENTS AND MEETINGS
SECTION 13.01 AMENDMENTS.
(a) Except as otherwise provided in this Trust Agreement or by any
applicable terms of the Preferred Trust Securities, this Trust Agreement may
only be amended by a written instrument approved and executed by:
the Administrative Trustees (or, if there are more than two
Administrative Trustees, a majority of the Administrative Trustees);
if the amendment affects the rights, powers, duties, obligations
or immunities of the Property Trustee, the Property Trustee; and
if the amendment affects the rights, powers, duties, obligations
or immunities of the Delaware Trustee, the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment shall
be void and ineffective:
unless, in the case of any proposed amendment, the Property
Trustee shall have first received an Officers' Certificate from each of the
Trust and the Control Party that such amendment is permitted by, and conforms
to, the terms of this Trust Agreement (including the terms of the Preferred
Trust Securities);
unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Property Trustee, the
Property Trustee shall have first received an opinion of counsel (who may be
counsel to the Control Party or the Trust) that such amendment is permitted by,
and conforms to, the terms of this Trust Agreement (including the terms of the
Preferred Trust Securities); and
to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified for
purposes of United States federal income taxation as a grantor trust or a
company for United Kingdom corporate income tax purposes;
(B) cause the Partnership to be classified for purposes of
United States federal income tax as an association or publicly traded
partnership taxable as a corporation or a company for United Kingdom corporate
income tax purposes;
(C) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust Indenture Act; or
(D) cause the Trust to be deemed to be an Investment Company
required to be registered under the 1940 Act.
(c) In the event the consent of the Property Trustee, as the holder of
the Preferred Partnership Securities is required under the Limited Partnership
Agreement with respect to any amendment, modification or termination of the
Limited Partnership Agreement or the Preferred Partnership Securities the
Property Trustee shall request the direction of the Holders with respect to such
amendment, modification or termination and shall vote with respect to such
amendment, modification or termination as directed by a Majority in Liquidation
Amount of the Preferred Trust Securities voting together as a single class;
provided, however, that where a consent under the Limited Partnership Agreement
would require the consent of a Super Majority of the Holders of Preferred
Partnership Securities the Property Trustee may only give such consent at the
direction of the Holders of at least the proportion in Liquidation Amount of the
Preferred Trust Securities which the relevant Super Majority represents of the
aggregate liquidation preference of the Preferred Partnership Securities
outstanding; provided, further, that the Property Trustee shall not be obligated
to take any action in accordance with the directions of the Holders under this
Section 13.01(c) unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that for United States federal income tax
purposes the Trust will continue to be classified as a grantor trust after
consummation of such action and each Holder will be treated as owning an
undivided beneficial ownership interest in the Preferred Partnership Securities.
(d) At such time after the Trust has issued any Preferred Trust
Securities that remain outstanding, any amendment that would (I) adversely
affect the powers, preferences or special rights of the Preferred Trust
Securities or (II) provide for the dissolution, winding-up or termination of the
Trust other than pursuant to the terms of this Trust Agreement, may be effected
only with the approval of the Holders of at least a Majority in Liquidation
Amount of the Preferred Trust Securities affected thereby; provided, that if any
amendment or proposal referred to in clause (I) hereof would adversely affect
only the Preferred Trust Securities or the Control Party, then only the affected
class or party will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of a
Majority in Liquidation Amount of such class of Preferred Trust Securities;
(e) Section 11.01(c) and this Section 13.01 shall not be amended
without the consent of all of the Holders;
(f) Article IV shall not be amended without the consent of the Control
Party and;
(g) The rights of the Control Party under Article V to increase or
decrease the number of, and appoint and remove, Trustees shall not be amended
without the consent of the Control Party; and
(h) Notwithstanding Section 13.01(c), this Trust Agreement may be
amended without the consent of the Holders:
to cure any ambiguity;
to correct or supplement any provision in this Trust Agreement
that may be defective or inconsistent with any other provision of this Trust
Agreement;
to add to the covenants, restrictions or obligations of the
Successor Depositor;
to conform to any change in the 1940 Act or written change in
interpretation or application of the rules and regulations promulgated
thereunder by any legislative body, court, government agency or regulatory
authority;
to conform to any change in the Trust Indenture Act or written
change in interpretation or application of the rules and regulations promulgated
thereunder by any legislative body, court, government agency or regulatory
authority; and
to modify, eliminate and add to any provision of this Trust
Agreement to such extent as may be necessary; provided, that such amendments do
not have a material adverse effect on the rights, preferences or privileges of
the Holders.
SECTION 13.02 MEETINGS OF THE HOLDERS; ACTION BY WRITTEN CONSENT.
(a) Meetings of the Holders may be called at any time by the
Administrative Trustees (or as provided in the terms of the Preferred Trust
Securities) to consider and act on any matter on which Holders are entitled to
act under the terms of this Trust Agreement, the terms of the Preferred Trust
Securities, the Limited Partnership Agreement, the rules of any stock exchange
on which the Preferred Trust Securities are listed or admitted for trading, the
Business Trust Act or other applicable law. The Administrative Trustees shall
call a meeting of the Holders if directed to do so by the Holders of at least
10% in Liquidation Amount of such class of Preferred Trust Securities. Such
direction shall be given by delivering to the Administrative Trustees one or
more notices in a writing stating that the signing Holders wish to call a
meeting and indicating the general or specific purpose for which the meeting is
to be called. Any Holders calling a meeting shall specify in writing the
Certificates held by the Holders exercising the right to call a meeting and only
those Preferred Trust Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the second sentence of
this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Preferred Trust Securities, the following provisions shall apply to meetings of
Holders:
notice of any such meeting shall be given to all the Holders
having a right to vote thereat at least 7 days and not more than 60 days before
the date of such meeting. Any action that may be taken at a meeting of the
Holders may be taken without a meeting if a consent in writing setting forth the
action so taken is signed by the Holders owning not less than the minimum amount
of Preferred Trust Securities in Liquidation Amount that would be necessary to
authorize or take such action at a meeting at which all Holders having a right
to vote thereon were present and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders entitled to vote who have not
consented in writing. The Administrative Trustees may specify that any written
ballot submitted to the Holder for the purpose of taking any action without a
meeting shall be returned to the Trust within the time specified by the
Administrative Trustees;
each Holder may authorize any Person to act for it by proxy
on all matters in which a Holder is entitled to participate, including waiving
notice of any meeting, or voting or participating at a meeting. No proxy shall
be valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder executing it. Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies shall be governed by the
General Corporation Law of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Delaware corporation
and the Holders were shareholders of a Delaware corporation;
each meeting of the Holders shall be conducted by the
Administrative Trustees or by such other Person that the Administrative Trustees
may designate; and
unless the Business Trust Act, this Trust Agreement, the
terms of the Preferred Trust Securities, the Trust Indenture Act or the listing
rules of any stock exchange on which the Preferred Trust Securities are then
listed for trading, otherwise provides, the Administrative Trustees, in their
sole discretion, shall establish all other provisions relating to meetings of
Holders, including notice of the time, place or purpose of any meeting at which
any matter is to be voted on by any Holders, waiver of any such notice, action
by consent without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with respect to
the exercise of any such right to vote.
ARTICLE XIV
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 14.01 REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Control Party at the date of this Trust
Agreement, and each Successor Property Trustee represents and warrants to the
Trust and the Control Party at the time of the Successor Property Trustee's
acceptance of its appointment as Property Trustee that:
(a) The Property Trustee is a New York banking corporation with
trust powers, duly organized, validly existing and in good standing under the
laws of New York, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, the Trust Agreement;
(b) The execution, delivery and performance by the Property
Trustee of the Trust Agreement has been duly authorized by all necessary
corporate action on the part of the Property Trustee. The Trust Agreement has
been duly executed and delivered by the Property Trustee and constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law);
(c) The execution, delivery and performance of the Trust
Agreement by the Property Trustee does not conflict with or constitute a breach
of the Articles of Organization or By-laws of the Property Trustee;
(d) No consent, approval or authorization of, or registration
with or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee of this Trust
Agreement; and
(e) The Property Trustee, pursuant to this Trust Agreement, shall
hold legal title to, and a valid ownership interest on behalf of the Holders, in
the Preferred Partnership Securities and agrees that, except as expressly
provided or contemplated by this Agreement, it will not create, incur or assume,
or suffer to exist any mortgage, pledge, hypothecation, encumbrance, lien or
other charge or security interest upon the Preferred Partnership Securities.
SECTION 14.02 REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Control Party at the date of this Trust
Agreement, and each Successor Delaware Trustee represents and warrants to the
Trust and the Control Party at the time of the Successor Delaware Trustee's
acceptance of its appointment as Delaware Trustee that:
(a) The Delaware Trustee is a Delaware corporation with, duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, the Trust Agreement;
(b) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Trust Agreement. The Trust
Agreement, under Delaware law, constitutes a legal, valid and binding obligation
of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law);
(c) No consent, approval or authorization of, or registration
with or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of the Trust
Agreement; and
(d) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
ARTICLE XV
MISCELLANEOUS
SECTION 15.01 NOTICES.
All notices provided for in this Trust Agreement shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Administrative Trustees
at the Trust's mailing address set forth below (or such other address as the
Trust may give notice of to the Holders):
TXU Europe Capital I
c/o TXU Business Services Company
Energy Plaza
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Administrative Trustees
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as the Delaware Trustee may give notice of to
the other Trustees):
The Bank of New York (Delaware)
Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
(c) if given to the Property Trustee, at its Corporate Trust
Office to the attention of the Corporate Trust Department (or such other address
as the Property Trustee may give notice of to the Holders and the other
Trustee).
(d) if given to the Control Party, at its mailing address as set
forth below (or such other address as the Control Party may give notice of to
the Trust):
c/o TXU Europe Limited
The Adelphi
0-00 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Attention: Treasurer
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust. All such notices shall be deemed to have been
given when received in person, telecopied with receipt confirmed, or mailed by
first class mail, postage prepaid, except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 15.02 GOVERNING LAW.
This Trust Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the internal laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 15.03 INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust be classified for
United States federal income tax purposes as a grantor trust. The provisions of
this Trust Agreement shall be interpreted to further this intention of the
parties.
SECTION 15.04 HEADINGS.
Headings contained in this Trust Agreement are inserted for convenience of
reference only and do not affect the interpretation of this Trust Agreement or
any provision hereof.
SECTION 15.05 SUCCESSORS AND ASSIGNS
Whenever in this Trust Agreement any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Trust Agreement by the
Successor Depositor, the Control Party, and the Trustees shall bind and inure to
the benefit of their respective successors and assigns, whether so expressed.
SECTION 15.06 PARTIAL ENFORCEABILITY.
If any provision of this Trust Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Trust Agreement, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 15.07 COUNTERPARTS.
This Trust Agreement may contain more than one counterpart of the signature
page and this Trust Agreement may be executed by the affixing of the signature
of each of the Trustees and a duly authorized director or officer of each of the
Initial Depositor, the Successor Depositor, and the Control Party to one of such
counterpart signature pages. All of such counterpart signature pages shall be
read as though one, and they shall have the same force and effect as though all
of the signers had signed a single signature page.
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.
TXU BUSINESS SERVICES COMPANY
By: _________________________________________________
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:__________________________________________________
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:___________________________________________________
Title:
______________________________________________
solely in his (her) capacity as
Administrative Trustee
______________________________________________
solely in his (her) capacity as
Administrative Trustee
______________________________________________
solely in his (her) capacity as
Administrative Trustee
______________________________________________
solely in his (her) capacity as
Administrative Trustee
______________________________________________
solely in his (her) capacity as
Administrative Trustee
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
This Preferred Trust Security is a Global Certificate within the
meaning of the Trust Agreement hereinafter referred to and is registered in the
name of The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Preferred Trust Security is exchangeable for Preferred Trust
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Trust Agreement and
no transfer of this Preferred Trust Security (other than a transfer of this
Preferred Trust Security as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Preferred Trust Security is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx), a New York corporation, to the Trust or its agent for registration of
transfer, exchange or payment, and any Preferred Trust Security issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of the Depositary and any payment hereon is made to
Cede & Co. or such other entity as is requested by an authorized representative
of the Depositary, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Trust Securities
P- CUSIP NO.
Certificate Evidencing Preferred Trust Securities
of
TXU EUROPE CAPITAL I
__% Trust Originated Preferred Securities
(liquidation amount $_____ per Preferred Trust Security)
TXU EUROPE CAPITAL I, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of ___________ preferred securities of the
Trust representing undivided beneficial ownership interests in the assets of the
Trust designated the _____% Trust Originated Preferred Securities (Liquidation
Amount $25 per Preferred Trust Security) (the "Preferred Trust Securities"). The
Preferred Trust Securities are freely transferable on the books and records of
the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designation,
rights, powers, privileges, restrictions, preferences and other terms and
provisions of the Preferred Trust Securities represented hereby are set forth
in, issued under and shall in all respects be subject to the provisions of the
Amended and Restated Trust Agreement dated as of _______________, __________, as
the same may be amended from time to time (the "Trust Agreement"). Capitalized
terms used herein but not defined shall have the meaning given them in the Trust
Agreement. The Holder is entitled to the benefits of the Preferred Trust
Securities Guarantee to the extent provided therein. Each Holder of a Preferred
Trust Security, by acceptance of this Certificate and each Certificate owner, by
acquisition of a beneficial interest in a Certificate, agrees to treat the
Initial Debentures, and any other Affiliate Investment Instruments, as
indebtedness for United States federal and United Kingdom corporate income tax
purposes. The Trust will provide a copy of the Trust Agreement, the Preferred
Trust Securities Guarantee and the Limited Partnership Agreement to a Holder
without charge upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trust has executed this certificate this __day
of ___________, _______.
TXU EUROPE CAPITAL I
By:
-----------------------------------------
Name: ___________________, solely in his
(her) capacity as Administrative Trustee
(See reverse for additional terms)
CERTIFICATE OF AUTHENTICATION. This is the Preferred Trust Security described in
the within-mentioned Trust Agreement.
THE BANK OF NEW YORK, as Property Trustee
By:
------------------------------------------------
Authorized Signatory
[FORM OF REVERSE OF SECURITY]
Holders of Preferred Trust Securities shall be entitled to receive
cumulative cash distributions at a rate per annum of _____% of the stated
Liquidation Amount of $25 per Preferred Trust Security. Distributions on the
Preferred Trust Securities shall, from the date of original issue, accumulate
and be cumulative and shall be payable quarterly only to the extent that the
Trust has funds available for the payment of such distributions in the Property
Account. Distributions not paid on the scheduled payment date will accumulate
and compound quarterly (to the extent permitted by applicable law) at the rate
of _____% per annum. Amounts available to the Trust for distribution to the
holders of the Preferred Trust Securities will be limited to payments received
by the Trust from the Partnership on the Preferred Partnership Securities or
from the Company on the Partnership Guarantee. Distributions on the Preferred
Partnership Securities will be paid only if, as and when declared in the sole
discretion of the Company, as the General Partner of the Partnership. If and to
the extent that the Partnership makes a distribution on the Preferred
Partnership Securities held by the Property Trustee or the Company makes a
payment under the Partnership Guarantee (the amount of any such partnership
distribution, including any compounding thereon, or guarantee payment being a
"Payment Amount"), the Trust shall make, and the Property Trustee is directed to
make, to the extent funds are available for that purpose, a Pro Rata
Distribution of the Payment Amount to Holders.
The amount of Distributions payable for any period will be computed for
any full quarterly Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly Distribution
period on the basis of the actual number of days elapsed in a 90-day quarter.
Except as otherwise described herein, distributions on the Preferred
Trust Securities will be cumulative, will accumulate from the date of initial
issuance and will be payable quarterly in arrears, on _______________,
_______________, _______________ and _______________ of each year, commencing on
_______________________, _________, if, as and when available for payment by the
Property Trustee. If the Preferred Trust Securities (or, if the Trust is
liquidated, the Preferred Partnership Securities) are in book-entry-only form,
Distributions will be payable to the Holders of record of Preferred Trust
Securities as they appear on the books and records of the Trust on the relevant
record dates, which will be one Business Day prior to the relevant payment
dates. If the Preferred Trust Securities (or, if the Trust is liquidated, the
Preferred Partnership Securities) do not remain in book-entry-only form, the
relevant record dates shall be the 15th day of the month of the relevant payment
dates. In the event that any date on which distributions are payable is not a
Business Day, payment of such Distribution shall be made on the next succeeding
day which is a Business Day (without any interest or other payment in respect of
any such delay) except that, if such Business Day falls in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, with the same force and effect as if made on such date. Payments of
accumulated Distributions will be payable to Holders of record of Preferred
Trust Securities as they appear on the books and records of the Trust on the
record date with respect to the payment date for the Preferred Trust Securities
which corresponds to the payment date fixed by the Partnership with respect to
the payment of cumulative distributions on the Preferred Partnership Securities.
The Preferred Trust Securities shall be redeemable as provided in the
Trust Agreement.
ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Trust Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints agent to transfer this Preferred Trust Security
Certificate on the books of the Trust. The agent may substitute another to act
for him or her.
Date: ________________
Signature: _____________
(Sign exactly as your name appears on the other side of this Preferred Trust
Security Certificate)
EXHIBIT A-2
FORM OF CONTROL CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS
PROVIDED IN THE TRUST AGREEMENT REFERRED TO HEREIN
Control Certificate
of
TXU EUROPE CAPITAL I
With respect to TXU EUROPE CAPITAL I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), by the execution of that
certain amended and restated Trust Agreement, dated as of _______________, 1999,
as the same may be amended and restated from time to time (the "Trust
Agreement") among (i) TXU Business Services Company, a Texas corporation (the
"Initial Depositor"), (ii) TXU Europe Limited, a private limited company
organized under the laws of England and Wales, (the "Successor Depositor"),
(iii) 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"), (iv)
The Bank of New York (Delaware), a banking corporation duly organized under the
laws of Delaware, as Delaware trustee (the "Delaware Trustee"), (v)
____________________, ____________________, ____________________ and
____________________, each an individual, and each of whose address is c/o TXU
Business Services Company, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000 (each, an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees are
referred to herein each as a "Trustee" and collectively as the "Trustees"), (vi)
__________________, a Delaware corporation (the "Control Party"), and (vi) the
several Holders, the Trust hereby issues this Control Certificate to
_______________________. The designations, rights, privileges, restrictions, and
preferences of the holder of this certificate are set forth in, and shall in all
respects be subject to the terms and provisions of, the Trust Agreement. The
Trust shall furnish a copy of the Trust Agreement to the holder hereof without
charge upon written request to the Trust at its principal place of business.
Upon receipt of the Control Certificate, the holder hereof is bound by
the Trust Agreement and is entitled to the benefits thereunder. Receipt of the
Control Certificate will not bestow or impose on the holder hereof any economic
or financial interest in or obligation with respect to the Trust.
IN WITNESS WHEREOF, the Trust has executed this certificate this __day
of ________, _______.
TXU EUROPE CAPITAL I
By: .........
---------------------------------------
____________________, solely in
his (her) capacity as Administrative
Trustee
AGREED AND ACCEPTED:
----------------------------------------,
as holder of the Control Certificate
By: ___________________________________
Title: ___________________________________
