Exhibit 4(a)
=================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
between
TEXAS UTILITIES ELECTRIC COMPANY, as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
Xxxxx Xxxxxxxxx,
Xxxxxxx X. Xxxxx
and
Xxxxxxx Xxxxxxx, as Trustees
Dated as of _________ __, 1995
TU ELECTRIC CAPITAL III
=================================================================
TU Electric Capital II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- ---------------
Section 310(a)(1) . . . . . . . . . . . . . 8.07
(a)(2) . . . . . . . . . . . . . 8.07
(a)(3) . . . . . . . . . . . . . 8.09
(a)(4) . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . 8.08
Section 311(a) . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . 8.13
Section 312(a) . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . 5.07
Section 313(a) . . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . . . 8.14(b)
(b) . . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . . 8.14(a)
(d) . . . . . . . . . . . . . 8.14(a), 8.14(b)
Section 314(a) . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . Not Applicable
(c)(2) . . . . . . . . . . . . . Not Applicable
(c)(3) . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . 8.01
(b) . . . . . . . . . . . . . 8.02, 8.14(b)
(c) . . . . . . . . . . . . . 8.01(a)
(d) . . . . . . . . . . . . . 8.01, 8.03
(e) . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . Not Applicable
Section 317(a)(1) . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . 5.09
Section 318(a) . . . . . . . . . . . . . 10.10
----------------
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Trust Agreement.
TABLE OF CONTENTS
ARTICLE I.
Defined Terms
Section 1.01. Definitions . . . . . . . . . . . . . . 2
ARTICLE II.
Establishment of the Trust
Section 2.01. Name . . . . . . . . . . . . . . . . . . 11
Section 2.02. Office of the Delaware Trustee;
Principal Place of Business . . . . . . 11
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses . . . . . . . . 11
Section 2.04. Issuance of the Preferred Securities . . 11
Section 2.05. Subscription and Purchase of Debentures;
Issuance of the Common Securities . . . 11
Section 2.06. Declaration of Trust; Appointment of
Additional Administrative Trustees . . 11
Section 2.07. Authorization to Enter into Certain
Transactions . . . . . . . . . . . . . 12
Section 2.08. Assets of Trust . . . . . . . . . . . . . 16
Section 2.09. Title to Trust Property . . . . . . . . . 16
ARTICLE III.
Payment Account
Section 3.01. Payment Account . . . . . . . . . . . . . 16
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions . . . . . . . . . . . . . . 16
Section 4.02. Redemption . . . . . . . . . . . . . . . 17
Section 4.03. Subordination of Common Securities . . . 19
Section 4.04. Payment Procedures . . . . . . . . . . . 20
Section 4.05. Tax Returns and Reports . . . . . . . . . 20
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership . . . . . . . . . . . . 20
Section 5.02. The Trust Securities Certificates . . . . 21
Section 5.03. Execution and Delivery of Trust
Securities Certificates . . . . . . . . 21
Section 5.04. Registration of Transfer and Exchange of
Preferred Securities Certificates . . . 21
Section 5.05. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates . . . . . 22
Section 5.06. Persons Deemed Securityholders . . . . . 22
Section 5.07. Access to List of Securityholders' Names
and Addresses . . . . . . . . . . . . . 22
Section 5.08. Maintenance of Office or Agency . . . . . 23
Section 5.09. Appointment of Paying Agent . . . . . . . 23
Section 5.10. Ownership of Common Securities by
Depositor . . . . . . . . . . . . . . . 24
Section 5.11. Definitive Preferred Securities
Certificates . . . . . . . . . . . . . 24
Section 5.12. Book-Entry System . . . . . . . . . . . . 24
Section 5.13. Rights of Securityholders . . . . . . . . 25
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights . . . . . . 25
Section 6.02. Notice of Meetings . . . . . . . . . . . 26
Section 6.03. Meetings of Holders of Preferred
Securities . . . . . . . . . . . . . . 27
Section 6.04. Voting Rights . . . . . . . . . . . . . . 27
Section 6.05. Proxies, etc. . . . . . . . . . . . . . . 27
Section 6.06. Securityholder Action by Written
Consent . . . . . . . . . . . . . . . . 27
Section 6.07. Record Date for Voting and Other
Purposes . . . . . . . . . . . . . . . 28
Section 6.08. Acts of Securityholders . . . . . . . . . 28
Section 6.09. Inspection of Records . . . . . . . . . . 29
ARTICLE VII.
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee . . . . . . . . . . . . 29
Section 7.02. Delaware Trustee . . . . . . . . . . . . 30
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities . . . 30
Section 8.02. Notice of Defaults . . . . . . . . . . . 32
Section 8.03. Certain Rights of Property Trustee . . . 32
Section 8.04. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . 35
Section 8.05. May Hold Securities . . . . . . . . . . . 35
Section 8.06. Compensation; Fees; Indemnity . . . . . . 35
Section 8.07. Certain Trustees Required; Eligibility . 36
Section 8.08. Conflicting Interests . . . . . . . . . . 36
Section 8.09. Co-Trustees and Separate Trustee . . . . 37
Section 8.10. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . 38
Section 8.11. Acceptance of Appointment by Successor . 39
Section 8.12. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . 40
Section 8.13. Preferential Collection of Claims
Against Depositor or Trust . . . . . . 41
Section 8.14. Reports by Property Trustee . . . . . . . 41
Section 8.15. Reports to the Property Trustee . . . . . 41
Section 8.16. Evidence of Compliance With Conditions
Precedent . . . . . . . . . . . . . . . 42
Section 8.17. Number of Trustees. . . . . . . . . . . . 42
Section 8.18. Delegation of Power. . . . . . . . . . . 42
Section 8.19. Fiduciary Duty . . . . . . . . . . . . . 43
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date . . . . 44
Section 9.02. Early Termination . . . . . . . . . . . . 44
Section 9.03. Termination . . . . . . . . . . . . . . . 44
Section 9.04. Liquidation . . . . . . . . . . . . . . . 44
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and
Assumption of Obligations . . . . . . 47
Section 10.02. Limitation of Rights of
Securityholders . . . . . . . . . . . 47
Section 10.03. Amendment . . . . . . . . . . . . . . . 48
Section 10.04. Separability . . . . . . . . . . . . . . 49
Section 10.05. Governing Law . . . . . . . . . . . . . 49
Section 10.06. Successors . . . . . . . . . . . . . . . 49
Section 10.07. Headings . . . . . . . . . . . . . . . . 49
Section 10.08. Notice and Demand . . . . . . . . . . . 49
Section 10.09. Agreement Not to Petition . . . . . . . 50
Section 10.10. Conflict with Trust Indenture Act . . . 50
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
_______, 1995, between (i) Texas Utilities Electric Company, a
Texas corporation (the "Depositor"), (ii) The Bank of New York, a
banking corporation duly organized and existing under the laws of
New York, as trustee (the "Property Trustee" and, in its separate
capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) The Bank of New York (Delaware), a banking
corporation duly organized under the laws of Delaware, as
Delaware trustee (the "Delaware Trustee") (iv) Xxxxx Xxxxxxxxx,
an individual, Xxxxxxx X. Xxxxx, an individual and Xxxxxxx
Xxxxxxx, an individual, each of whose address is c/o Texas
Utilities Services Inc., 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000
(each, an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees referred to collectively
as the "Trustees") and (v) the several Holders, as hereinafter
defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor, the Property Trustee, the
Delaware Trustee and Xxxxx Xxxxxxxxx, as the Administrative
Trustee, have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act by the entering
into of that certain Trust Agreement, dated as of October 17,
1995 (the "Original Trust Agreement"), and by the execution by
the Property Trustee, the Delaware Trustee and Xxxxx Xxxxxxxxx,
as Administrative Trustee and filing with the Secretary of State
of the State of Delaware of the Certificate of Trust, dated
October 17, 1995, a copy of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware
Trustee and Xxxxx Xxxxxxxxx, as Administrative Trustee, desire to
amend and restate the Original Trust Agreement in its entirety as
set forth herein to provide for, among other things, (i) the
acquisition by the Trust from the Depositor of all of the right,
title and interest in the Debentures, (ii) the issuance of the
Common Securities by the Trust to the Depositor, (iii) the
issuance of the Preferred Securities by the Trust and (iv) the
appointment of the additional Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other party and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
Defined Terms
Section 1.01. Definitions. For all purposes of this
Trust Agreement, except as otherwise expressly provided or unless
the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include
the plural as well as the singular;
(b) all other terms used herein that are defined
in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an
Article or a Section, as the case may be, of this Trust
Agreement; and
(d) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Trust
Agreement as a whole and not to any particular Article,
Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust
Securities of a given Liquidation Amount and/or a given period,
the amount of Additional Interest (as defined in the Subordinated
Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative
Trustees of the Trust formed hereunder and not in their
individual capacities, or such trustee's successor in interest in
such capacity, or any successor trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Bank" has the meaning specified in the preamble to
this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such
Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee sequestrator or
other similar official of such Person or of any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or of the
consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking
reorganization or relief under Federal bankruptcy law
or any other applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such
Person or of any substantial part of its property, or
the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
due.
"Bankruptcy Laws" has the meaning specified in Section
10.09.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Depositor to have been duly adopted by the Depositor's Board of
Directors or a duly authorized committee thereof and to be in
full force and effect on the date of such certification, and
delivered to the appropriate Trustee.
"Business Day" means a day other than (x) a Saturday or
a Sunday, (y) a day on which banks in New York, New York are
authorized or obligated by law or executive order to remain
closed or (z) a day on which the Property Trustee's Corporate
Trust Office or the Debenture Trustee's principal corporate trust
office is closed for business.
"Certificate of Trust" has the meaning specified in
Section 2.07(d).
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository Trust Company
will be the initial Clearing Agency.
"Closing Date" means the date of execution and delivery
of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" means an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of Common Securities, substantially in the
form attached as Exhibit B.
"Corporate Trust Office" means the principal corporate
trust office of the Property Trustee located in New York, New
York.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of the Trust or the Trust's Affiliates; and (b) any Holder of
Trust Securities.
"Debenture Event of Default" means an "Event of
Default" as defined in the Subordinated Indenture.
"Debenture Issuer" means Texas Utilities Electric
Company, a Texas corporation, in its capacity as issuer of the
Debentures.
"Debenture Redemption Date" means "Redemption Date" as
defined in the Subordinated Indenture with respect to the
Debentures.
"Debenture Trustee" means The Bank of New York, as
trustee under the Subordinated Indenture.
"Debentures" means the $____________ aggregate
principal amount of the Depositor's ____% Junior Subordinated
Debentures, Series B, Due ___________, 2030, issued pursuant to
the Subordinated Indenture.
"Definitive Preferred Securities Certificates" means
Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.11.
"Delaware Business Trust Act" means Chapter 38 of Title
12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the banking corporation
identified as the "Delaware Trustee" in the preamble to this
Trust Agreement solely in its capacity as Delaware Trustee of the
Trust formed hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble
to this Trust Agreement and includes Texas Utilities Electric
Company in its capacity as Holder of the Common Securities.
"Distribution Date" has the meaning specified in
Section 4.01(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in
Section 9.02.
"Event of Default" means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of Default;
or
(ii) default by the Trust in the payment of any
Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days;
or
(iii) default by the Trust in the payment of any
Redemption Price, plus accumulated and unpaid
distributions of any Trust Security when it becomes due
and payable; or
(iv) default in the performance, or breach, in any
material respect of any covenant or warranty of the
Trustees in this Trust Agreement (other than a covenant
or warranty a default in whose performance or breach is
specifically dealt with in clause (ii) or (iii), above)
and continuation of such default or breach for a period
of 60 days after there has been given, by registered or
certified mail, to the Trust by the Holders of at least
10% in Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with
respect to the Trust.
"Exchange Act" has the meaning specified in Section
2.07(c).
"Expense Agreement" means the Agreement as to Expenses
and Liabilities between the Depositor and the Trust,
substantially in the form attached as Exhibit C, as amended from
time to time.
"Expiration Date" shall have the meaning specified in
Section 9.01.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, a New York
banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit
of the Holders of the Preferred Securities, as amended from time
to time.
"Indemnified Person" means any Trustee, any Affiliate
of any Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives or agents of any
Trustee, or any employee or agent of the Trust or its Affiliates.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a
Liquidation Amount equal to the principal amount of Debentures to
be contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities plus accumulated and
unpaid Distributions to the date of such payment and (ii)
Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such
Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Debentures
are to be distributed to Holders of Trust Securities in
connection with a termination and liquidation of the Trust
pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"No Recognition Opinion" has the meaning specified in
Section 9.04(d).
"Offer" has the meaning specified in Section 2.07(c).
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Trust, the Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of the
Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in
the recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
Securities theretofore delivered under this Trust Agreement,
except:
(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the
Administrative Trustees for cancellation;
(ii) Preferred Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities
are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu
of which other Preferred Securities have been delivered
pursuant to this Trust Agreement, including pursuant to
Sections 5.04, 5.05 or 5.11;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Preferred Securities which such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at
any time when all of the outstanding Preferred Securities are
owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative
Trustee the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or
any Affiliate of the Depositor.
"Owner" means each Person who is the owner of a
Preferred Securities Certificate as reflected in the Securities
Register.
"Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 5.09 and shall initially be
Texas Utilities Services, Inc.
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee with the Bank in its trust department for the benefit of
the Securityholders in which all amounts paid in respect of the
Debentures will be held and from which the Property Trustee shall
make payments to the Securityholders in accordance with
Sections 4.01 and 4.02.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company or
corporation, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Security" means a quarterly income preferred
security representing an undivided beneficial interest in the
assets of the Trust having a Liquidation Amount of $25 and having
rights provided therefor in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as
provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in
the form attached as Exhibit D.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to
this Trust Agreement solely in its capacity as Property Trustee
of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any date
fixed for redemption of any Trust Security, the Liquidation
Amount of such Trust Security.
"Redemption Tax Opinion" has the meaning specified in
Section 9.04(d).
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Securities Depository" shall have the meaning
specified in Section 5.12.
"Securities Register" and "Securities Registrar" shall
mean the Securities Register and Securities Registrar described
in Section 5.04.
"Securityholder" or "Holder" means a Person in whose
name a Trust Security or Securities is registered in the
Securities Register; any such Person shall be deemed to be a
beneficial owner of such security within the meaning of the
Delaware Business Trust Act.
"Subordinated Indenture" means the Indenture, dated as
of __________, 1995, between the Depositor and the Debenture
Trustee, as trustee, as amended or supplemented from time to
time.
"Tax Event" means the receipt by the Trust of an
opinion of nationally recognized independent tax counsel
experienced in such matters to the effect that, as a result of
(a) any amendment to, clarification of, or change (including any
announced prospective change) in, the laws or treaties (or any
regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting
taxation, (b) any judicial decision or any official
administrative pronouncement, ruling, regulatory procedure,
notice or announcement (including any notice or announcement of
intent to issue or adopt any such administrative pronouncement,
ruling, regulatory procedure or regulation) (each, for purposes
of this definition, an "Administrative Action"), or (c) any
amendment to, clarification of, or change in the official
position or the interpretation of any such Administrative Action
or judicial decision or any interpretation or pronouncement that
provides for a position with respect to such Administrative
Action or judicial decision that differs from the theretofore
generally accepted position, in each case by any legislative
body, court, governmental authority or regulatory body,
irrespective of the manner in which such amendment, clarification
or change is made known, which amendment, clarification, or
change is effective, which Administrative Action is taken or
which judicial decision is issued, in each case on or after the
date of issuance of the Preferred Securities, there is more than
an insubstantial risk that (i) the Trust is, or will be, subject
to United States federal income tax with respect to interest
received on the Debentures, (ii) interest payable by the
Depositor on the Debentures is not, or will not be, fully
deductible by the Depositor for United States federal income tax
purposes, or (iii) the Trust is, or will be, subject to more than
a de minimis amount of other taxes, duties or other governmental
charges.
"Trust" means the Delaware business trust created by
the Original Trust Agreement and continued hereby and identified
on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any
cash on deposit in, or owing to, the Payment Account and (iii)
all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities
or the Preferred Securities.
"Trust Securities Certificate" means any one of the
Common Securities Certificates or the Preferred Securities
Certificates.
"Underwriting Agreement" means the Underwriting
Agreement, dated as of __________, 1995, among the Trust, the
Depositor and the underwriters named therein.
ARTICLE II.
Establishment of the Trust
Section 2.01. Name. The Trust created hereby shall be
known as "TU Electric Capital II", in which name the Trustees may
conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and xxx and be sued.
Section 2.02. Office of the Delaware Trustee;
Principal Place of Business. The office of the Delaware Trustee
in the State of Delaware is Xxxxx Xxxx Center, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000, or at such other address in Delaware as the
Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of
business of the Trust is c/o Texas Utilities Electric Company,
Energy Plaza, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000.
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with the
Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses
paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
Section 2.04. Issuance of the Preferred Securities.
On ______, 1995 the Depositor, on behalf of the Trust, executed
and delivered the Underwriting Agreement. Contemporaneously
with the execution and delivery of this Trust Agreement, one of
the Administrative Trustees, on behalf of the Trust in accordance
with Section 5.02, shall execute and deliver to the underwriters
named therein Preferred Securities Certificates, registered in
the name of the nominee of The Depository Trust Company, in an
aggregate amount of [ ] Preferred Securities having an
aggregate Liquidation Amount of $[ ] against receipt of
the aggregate purchase price of such Preferred Securities of
$[ ], which amount the Administrative Trustees shall promptly
deliver to the Property Trustee.
Section 2.05. Subscription and Purchase of Debentures;
Issuance of the Common Securities. Contemporaneously with the
execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the
name of the Trust and having an aggregate principal amount equal
to $[ ], and, in satisfaction of the purchase price for
such Debentures, (x) the Administrative Trustees, on behalf of the
Trust, shall execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an
aggregate amount of $[ ] Common Securities having an aggregate
Liquidation Amount of $[ ], and (y) the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor the sum of
$[ ].
Section 2.06. Declaration of Trust; Appointment of
Additional Administrative Trustees. (a) The exclusive purposes
and functions of the Trust are (i) to issue Trust Securities and
invest the proceeds thereof in Debentures, and (ii) to engage
in those activities necessary, convenient or incidental thereto.
The Depositor hereby appoints the Trustees as trustees of the
Trust, to have all the rights, powers and duties to the extent
set forth herein. The Property Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the
Securityholders. The Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust.
Anything in this Trust Agreement to the contrary notwithstanding
the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of
the Trustees of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware
Business Trust Act.
(b) The Property Trustee, the Delaware Trustee and
Xxxxx Xxxxxxxxx, as Administrative Trustee, hereby appoint
Xxxxxxx X. Xxxxx and Xxxxxxx Xxxxxxx as additional Administrative
Trustees, each of which persons by execution of this Trust
Agreement accepts such appointment.
Section 2.07. Authorization to Enter into Certain
Transactions. (a) The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this
Section and Article VIII and in accordance with the following
provisions (A) and (B), the Trustees shall have the authority to
enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority, express
or implied, otherwise granted to the Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees
shall have the power, duty and authority to act on behalf of the
Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities;
(ii) without the consent of any Person, to cause the
Trust to enter into and to execute, deliver and perform
on behalf of the Trust, the Expense Agreement, the
Underwriting Agreement and such other agreements as
may be necessary or desirable in connection with the
consummation hereof (such execution to be by the
Administrative Trustees or any one of them);
(iii) to qualify the Trust to do business in any
jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
(v) the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
(vi) the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be
determined by the Depositor and the registration of the
Preferred Securities under the Exchange Act, as
amended, and the preparation and filing of all periodic
and other reports and other documents pursuant to the
foregoing;
(vii) the appointment of a Paying Agent and Securities
Registrar in accordance with this Trust Agreement;
(viii) registering transfers of the Trust Securities
in accordance with this Trust Agreement;
(ix) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the
Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State
of Delaware; and
(x) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
(B) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and any other
payments made in respect of the Debentures in the
Payment Account;
(iv) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with
the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(vii) as provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and
the execution of the certificate of cancellation to be
prepared and filed by the Administrative Trustees with
the Secretary of State of the State of Delaware; and
(viii) the taking of any action incidental to the
foregoing as the Property Trustee may from time to time
determine is necessary or advisable to protect and
conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
Subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties, powers or authority of the
Administrative Trustee set forth in Section 2.07(a)(A) or the
Depositor set forth in Section 2.07(c).
(b) So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust) shall
not undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify
as a "grantor trust" for United States federal income tax
purposes and not as an association taxable as a corporation, (iv)
incur any indebtedness for borrowed money or (v) take or consent
to any action that would result in the placement of a Lien on any
of the Trust Property. The Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of
the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue of the Preferred
Securities, the Depositor shall have the right and responsibility
to assist the Trust with respect to, or effect on behalf of the
Trust, the following (and any actions taken by the Depositor in
furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(ii) to determine the States in which to take
appropriate action to qualify or register for sale all
or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken
by or on behalf of the Trust, and advise the Trustees
of actions they must take on behalf of the Trust, and
prepare for execution and filing any documents to be
executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such
States;
(iii) to prepare for filing by the Trust an
application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market
for listing upon notice of issuance of any Preferred
Securities;
(iv) to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) of the Securities
Exchange Act of 1934, as amended ("Exchange Act"),
including any amendments thereto;
(v) to select the investment banker or bankers to
act as underwriters with respect to the offer and sale
by the Trust of Preferred Securities ("Offer") and
negotiate the terms of an Underwriting Agreement and
pricing agreement providing for the Offer;
(vi) to take any other actions necessary or desirable
to carry out any of the foregoing activities; and
(vii) to designate itself or an Affiliate to be the
Securities Registrar.
(d) Notwithstanding anything herein to the contrary,
the Administrative Trustees are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so that
the Trust will not be deemed to be an "investment company"
required to be registered under the Investment Company Act of
1940, as amended, or classified other than as a "grantor trust"
for United States federal income tax purposes and not as an
association taxable as a corporation and so that the Debentures
will be treated as indebtedness of the Depositor for United
States federal income tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the certificate
of trust filed with the Secretary of State of the State of
Delaware with respect to the Trust (the "Certificate of Trust")
or this Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such action
does not materially adversely affect the interests of the holders
of the Preferred Securities.
Section 2.08. Assets of Trust. The assets of the
Trust shall consist of the Trust Property.
Section 2.09. Title to Trust Property. Legal title to
all Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE III.
Payment Account
Section 3.01. Payment Account.
(a) On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property
Trustees and the Paying Agent appointed by the Administrative
Trustees shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the holders of Trust
Securities and for distribution as herein provided, including
(and subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect to,
the Debentures. Amounts held in the Payment Account shall not be
invested by the Property Trustee pending distribution thereof.
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions.
(a) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of
the Trust available for the payment of Distributions.
Distributions shall accrue from _________, 199__, and, except
in the event that the Depositor exercises its right to extend the
interest payment period for the Debentures pursuant to Section
311 of the Subordinated Indenture, shall be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of
each year, commencing on _________ __, 199__. If any date on
which Distributions are otherwise payable on the Trust Securities
is not a Business Day, then the payment of such Distribution
shall be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such distribution shall be
made on the immediately preceding Business Day, in each case,
with the same force and effect as if made on such date (each date
on which distributions are payable in accordance with this
Section 4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities
shall be fixed at a rate of ____% per annum of the Liquidation
Amount of the Trust Securities. The amount of Distributions
payable for any full quarterly period shall be computed on the
basis of twelve 30-day months and a 360-day year and for any
period shorter than a full month, on the basis of the actual
number of days elapsed. If the interest payment period for the
Debentures is extended pursuant to Section 311 of the
Subordinated Indenture, then Distributions on the Preferred
Securities will be deferred for the period equal to the extension
of the interest payment period for the Debentures and the rate
per annum at which Distributions on the Trust Securities
accumulate shall be increased by an amount such that the
aggregate amount of Distributions that accumulate on all Trust
Securities during any such extended interest payment period is
equal to the aggregate amount of interest (including interest
payable on unpaid interest at the percentage rate per annum set
forth above, compounded monthly) that accrues during any such
extended interest payment period on the Debentures. The amount
of Distributions payable for any period shall include the
Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be
made and shall be deemed payable on each Distribution Date only
to the extent that the Trust has funds available in the Payment
Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect
to a Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities
on the relevant record date, which shall be 15 days prior to the
relevant Distribution Date.
Section 4.02. Redemption. (a) On each Debenture
Redemption Date, the Property Trustee will be required to redeem
a Like Amount of Trust Securities at the Redemption Price plus
accumulated and unpaid Distributions to the date of such payment.
(b) Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Redemption Date
to each Holder of Trust Securities to be redeemed, at such
Holder's address appearing in the Security Register. All notices
of redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of
accumulated and unpaid Dividends to be paid on the
Redemption Date;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the identification and
the total Liquidation Amount of the particular Trust
Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price
plus accumulated and unpaid Distributions to the date
of such payment will become due and payable upon each
such Trust Security to be redeemed and that interest
thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price plus accumulated
and unpaid Distributions to the date of such payment with the
proceeds from the contemporaneous redemption of Debentures.
Redemptions of the Trust Securities shall be made and the
Redemption Price plus accumulated and unpaid Distributions to the
date of such payment shall be deemed payable on each Redemption
Date only to the extent that the Trust has funds immediately
available in the Payment Account for such payment.
(d) If the Property Trustee gives a notice of
redemption in respect of any Preferred Securities, then, by 12:00
noon, New York time, on the Redemption Date, subject to Section
4.02(c), the Property Trustee shall irrevocably deposit with the
Paying Agent funds sufficient to pay the applicable Redemption
Price plus accumulated and unpaid Distributions to the date of
such payment and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price plus
accumulated and unpaid Distributions to the date of such payment
to the holders thereof upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the redemption date for any
Trust Securities called for redemption shall be payable to the
Holders of such Trust Securities as they appear on the Register
for the Trust Securities on the relevant record dates for the
related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then on the
Redemption Date, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price plus
accumulated and unpaid Distributions to the date of such payment,
but without interest thereon, and such Securities will cease to
be outstanding. In the event that any Redemption Date is not a
Business Day, then payment of the Redemption Price payable on
such date plus accumulated and unpaid Distributions to such date
shall be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such
delay). In the event that payment of the Redemption Price plus
accumulated and unpaid Distributions in respect of any Trust
Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities
will continue to accrue, at the then applicable rate, from the
Redemption Date originally established by the Trust for such
Trust Securities to the date such Redemption Price plus
accumulated and unpaid Distributions is actually paid, in which
case the actual payment date will be deemed the date fixed for
redemption for purposes of calculating the Redemption Price plus
accumulated and unpaid Distributions to such date.
(e) Payment of the Redemption Price on the Trust
Securities shall be made to the Holders thereof as they appear on
the Securities Register for the Trust Securities on the relevant
record date, which shall be the fifteenth day prior to the
Redemption Date.
(f) If less than all the Outstanding Trust Securities
are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be
allocated 3% to the Common Securities and 97% to the Preferred
Securities. The particular Preferred Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption
Date by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption, by such method
as the Property Trustee shall deem fair and appropriate and which
may provide for the selection for a redemption of portions (equal
to $25 or integral multiples thereof) of the Liquidation Amount
of Preferred Securities of a denomination larger than $25. The
Property Trustee shall promptly notify the Security Registrar in
writing of the Preferred Securities selected for redemption and,
in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For
all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Preferred Securities which
has been or is to be redeemed.
Section 4.03. Subordination of Common Securities. (a)
Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price plus accumulated and
unpaid distributions of, the Trust Securities, as applicable,
shall be made pro rata based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution
Date or Redemption Date a Debenture Event of Default shall have
occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, or Redemption
Price of, any Common Security, and no other payment on account of
the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Preferred Securities
for all distribution periods terminating on or prior thereto, or
in the case of payment of the Redemption Price plus accumulated
and unpaid Distributions the full amount of such Redemption Price
plus accumulated and unpaid Distributions on all Outstanding
Preferred Securities, shall have been made or provided for, and
all funds immediately available to the Property Trustee shall
first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable) on,
or Redemption Price of plus accumulated and unpaid Distributions
of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of
Default resulting from a Debenture Event of Default, the Holder
of Common Securities will be deemed to have waived any such Event
of Default under this Trust Agreement until the effect of all
such Events of Default with respect to the Preferred Securities
have been cured, waived or otherwise eliminated. Until any such
Events of Default under this Trust Agreement with respect to the
Preferred Securities have been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of
the Holders of the Preferred Securities and not the Holder of the
Common Securities, and only the Holders of the Preferred
Securities will have the right to direct the Property Trustee to
act on their behalf.
Section 4.04. Payment Procedures. Payments in respect
of the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall
appear on the Register or, if the Preferred Securities are held
by a Clearing Agency, such Distributions shall be made to the
Clearing Agency, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable distribution
dates. Payments in respect of the Common Securities shall be
made in such manner as shall be mutually agreed between the
Administrative Trustees and the Holder of the Common Securities.
Section 4.05. Tax Returns and Reports. The
Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense and direction, and file all United
States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In
this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared or filed) the Internal Revenue
Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the related Internal Revenue Service Form
1099, or any successor form or the information required to be
provided on such form. The Administrative Trustees shall provide
the Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or
furnishing. The Trustees shall comply with United States federal
withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership. Upon the formation
of the Trust by the contribution by the Depositor pursuant to
Section 2.03 and until the issuance of the Trust Securities, and
at any time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section 5.02. The Trust Securities Certificates. The
Trust Securities Certificates shall be issued in denominations of
$25 Liquidation Amount and integral multiples thereof. The Trust
Securities Certificates shall be executed on behalf of the Trust
by manual signature of at least one Administrative Trustee.
Trust Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the delivery of
such Trust Securities Certificates or did not hold such offices
at the date of delivery of such Trust Securities Certificates. A
transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject
to the obligations of a Securityholder hereunder, upon due
registration of such Trust Securities Certificate in such
transferee's name pursuant to Section 5.04 or 5.11.
Section 5.03. Execution and Delivery of Trust
Securities Certificates. On the Closing Date, the Administrative
Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in Sections 2.04 and
2.05, to be executed on behalf of the Trust, delivered to or upon
the written order of the Depositor signed by its chairman of the
board, any of its vice presidents or its Treasurer, without
further corporate action by the Depositor, in authorized
denominations.
Section 5.04. Registration of Transfer and Exchange of
Preferred Securities Certificates. The Securities Registrar
shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.08, a Securities Register in
which, subject to such reasonable regulations as it may
prescribe, the Securities Registrar shall provide for the
registration of Preferred Securities Certificates and the Common
Securities Certificates (subject to Section 5.10 in the case of
the Common Securities Certificates) and registration of transfers
and exchanges of Preferred Securities Certificates as herein
provided. Texas Utilities Services, Inc. shall be the initial
Securities Registrar.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute and deliver (or shall cause The
Bank of New York as its agent to deliver), in the name of the
designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount. At the option of a Holder,
Preferred Securities Certificates may be exchanged for other
Preferred Securities Certificates in authorized denominations of
the same class and of a like aggregate Liquidation Amount upon
surrender of the Preferred Securities Certificates to be
exchanged at the office or agency maintained pursuant to Section
5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and the Securities
Registrar duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Preferred Securities
Certificate surrendered for registration of transfer or exchange
shall be canceled and subsequently disposed of by the
Administrative Trustees in accordance with customary practice.
The Trust shall not be required to (i) issue, register the
transfer of, or exchange any Preferred Securities during a period
beginning at the opening of business 15 calendar days before the
day of mailing of a notice of redemption of any Preferred
Securities called for redemption and ending at the close of
business on the day of such mailing or (ii) register the transfer
of or exchange any Preferred Securities so selected for
redemption, in whole or in part, except the unredeemed portion of
any such Preferred Securities being redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but
the Securities Registrar may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Preferred Securities
Certificates.
Section 5.05. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates. If (a) any mutilated Trust
Securities Certificate shall be surrendered to the Securities
Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to
the Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of
them and the Depositor harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired
by a bona fide purchaser, the Administrative Trustees, or any one
of them, on behalf of the Trust shall execute by manual signature
and the Administrative Trustees, or any one of them, shall make
available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of any
new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require
the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to
this Section shall constitute conclusive evidence of an ownership
interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Trust Securities Certificate shall
be found at any time.
Section 5.06. Persons Deemed Securityholders. Prior
to due presentation of a Trust Securities Certificate for
registration of transfer, the Trustees and the Securities
Registrar shall be entitled to treat the Person in whose name any
Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving distributions and for
all other purposes whatsoever, and neither the Trustee nor the
Securities Registrar shall be bound by any notice to the
contrary.
Section 5.07. Access to List of Securityholders' Names
and Addresses. The Administrative Trustees shall furnish or
cause to be furnished (x) to the Depositor, within 15 days after
receipt by any Administrative Trustee of a request therefor from
the Depositor in writing and (y) to the Property Trustee,
promptly after receipt by any Administrative Trustee of a request
therefor from the Property Trustee in writing in order to enable
the Property Trustee to discharge its obligations under this
Trust Agreement, a list, in such form as the Depositor may
reasonably require, of the names and addresses of the
Securityholders as of the most recent Record Date. If Holders of
Trust Securities Certificates evidencing ownership at such time
and for the previous six months not less than 25% of the
outstanding aggregate Liquidation Amount apply in writing to any
Administrative Trustee, and such application states that the
applicants desire to communicate with other Securityholders with
respect to their rights under this Trust Agreement or under the
Trust Securities Certificates and such application is accompanied
by a copy of the communication that such applicants propose to
transmit, then the Administrative Trustees shall, within five
Business Days after the receipt of such application, afford such
applicants access during normal business hours to the current
list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not
to hold either the Depositor or the Administrative Trustees
accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section 5.08. Maintenance of Office or Agency. The
Administrative Trustees shall maintain in the Borough of
Manhattan, The City of New York, an office or offices or agency
or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where
notices and demands to or upon the Trustees in respect of the
Trust Securities Certificates may be served. The Administrative
Trustees initially designate The Bank of New York, 000 Xxxxxxx
Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000 at its principal
corporate trust office for such purposes. The Administrative
Trustees shall give prompt written notice to the Depositor and to
the Securityholders of any change in the location of the
Securities Register or any such office or agency.
Section 5.09. Appointment of Paying Agent. The Paying
Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such
distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
the distributions referred to above. The Property Trustee shall
be entitled to rely upon a certificate of the Paying Agent
stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one
of them may revoke such power and remove the Paying Agent if the
Administrative Trustee determines in its sole discretion that the
Paying Agent shall have failed to perform its obligations under
this Agreement in any material respect. The Paying Agent shall
initially be Texas Utilities Services, Inc., and it may choose
any co-paying agent that is acceptable to the Administrative
Trustees and the Depositor. The Paying Agent shall be permitted
to resign upon 30 days' written notice to the Administrative
Trustees and the Depositor. In the event that Texas Utilities
Services, Inc. shall no longer be the Paying Agent, the
Administrative Trustees shall appoint a successor that is
reasonably acceptable to the Property Trustee and the Depositor
to act as Paying Agent (which shall be a bank or trust company).
The Administrative Trustees shall cause such successor Paying
Agent or any additional Paying Agent appointed by the
Administrative Trustees to execute and deliver to the Trustees an
instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustees that as Paying Agent,
such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Securityholders
in trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The
Paying Agent shall return all unclaimed funds to the Property
Trustee and upon resignation or removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06
shall apply to the paying agent appointed hereunder. Any
reference in this Trust Agreement to the Paying Agent shall
include any co-paying agent unless the context requires
otherwise.
Section 5.10. Ownership of Common Securities by
Depositor. On the Closing Date and on each other date provided
for in Section 2.05, the Depositor shall acquire, and thereafter
retain, beneficial and record ownership of the Common Securities.
Any attempted transfer of the Common Securities shall be void.
The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE". Common Securities
Certificates representing the Common Securities shall be issued
to the Depositor in the form of a typewritten or definitive
Common Securities Certificate.
Section 5.11. Definitive Preferred Securities
Certificates. Upon initial issuance of the Preferred Securities
the Definitive Preferred Securities Certificates shall be
typewritten, printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the
Administrative Trustees, as evidenced by the execution thereof by
the Administrative Trustees, or any one of them. The
Administrative Trustees, or any one of them, shall execute by
manual signature the Definitive Preferred Securities Certificates
initially in accordance with the instructions of the Depositor.
Neither the Securities Registrar nor any of the Administrative
Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected
in relying on, such instructions.
Section 5.12. Book-Entry System. Some or all of the
Preferred Securities may be registered in the name of a
securities depository ("Securities Depository") or a nominee
therefor, and held in the custody of the Securities Depository.
In such event, a single certificate will be issued and delivered
to the Securities Depository for such Preferred Securities, in
which case the beneficial owners of such Preferred Securities
will not receive physical delivery of certificates for Preferred
Securities. Except as provided herein, all transfers of
beneficial ownership interests in such Preferred Securities will
be made by book-entry only, and no investor or other party
purchasing, selling or otherwise transferring beneficial
ownership of the Preferred Securities will receive, hold or
deliver any certificate for Preferred Securities. The Depositor,
the Trustees and the Paying Agent will recognize the Securities
Depository or its nominee as the Holder of Preferred Securities
for all purposes, including notices and voting.
The Administrative Trustees, at the direction and
expense of the Depositor, may from time to time appoint a
Securities Depository or a successor thereto and enter into a
letter of representations or other agreement with such Securities
Depository to establish procedures with respect to the Preferred
Securities. Any Securities Depository shall be a Clearing
Agency.
The Depositor and the Trustees covenant and agree to
meet the requirements of a Securities Depository for the
Preferred Securities with respect to required notices and other
provisions of the letter of representations or agreement executed
with respect to such Preferred Securities.
Whenever the beneficial ownership of any Preferred
Securities is determined through the books of a Securities
Depository, the requirements in this Trust Agreement of holding,
delivering or transferring such Preferred Securities shall be
deemed modified with respect to such Preferred Securities to meet
the requirements of the Securities Depository with respect to
actions of the Trustees, the Depositor and the Paying Agent. Any
provisions hereof permitting or requiring delivery of such
Preferred Securities shall, while such Preferred Securities are
in a Book-Entry System, be satisfied by the notation on the books
of the Securities Depository in accordance with applicable state
law.
Section 5.13. Rights of Securityholders. The legal
title to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust
Agreement. The Preferred Securities shall have no preemptive
rights and when issued and delivered to Securityholders against
payment of the purchase price therefor will be fully paid and
nonassessable by the Trust.
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights.
(a) Except as provided in this Section 6.01, in Section 10.03
and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of
the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an
association.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to
the Debenture Trustee, or executing any trust or power conferred
on the Debenture Trustee with respect to such Debentures, (ii)
waive any past default which is waivable under Section 813 of the
Subordinated Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures
shall be due and payable or (iv) consent to any amendment,
modification or termination of the Subordinated Indenture or the
Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at
least 66 2/3% of the aggregate Liquidation Amount of the
Preferred Securities; provided, however, that where a consent
under the Subordinated Indenture would require the consent of
each holder of Debentures affected thereby, no such consent shall
be given by any Trustee without the prior written consent of each
holder of Preferred Securities. The Trustees shall not revoke
any action previously authorized or approved by a vote of the
Preferred Securities, except pursuant to a subsequent vote of the
Preferred Securities. The Property Trustee shall notify all
Holders of the Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of
the foregoing actions, the Property Trustees shall, at the
expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will be
classified as a "grantor trust" and not as an association taxable
as a corporation for United States federal income tax purposes on
account of such action.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trustee otherwise proposes to effect, (i)
any action that would materially adversely affect the powers,
preferences or special rights of the Preferred Securities,
whether by way of amendment to the Trust Agreement or otherwise,
or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then
the Holders of outstanding Preferred Securities as a class will
be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the
approval of the Holders of at least 66 2/3 in Liquidation Amount
of the outstanding Preferred Securities. No amendment to this
Trust Agreement may be made if, as a result of such amendment,
the Trust would be classified as a "grantor trust" and not as an
association taxable as a corporation for United States federal
income tax purposes.
Section 6.02. Notice of Meetings. Notice of all
meetings of the Holders of Preferred Securities, stating the
time, place and purpose of the meeting, shall be given by the
Administrative Trustees pursuant to Section 10.08 to each Holder
of a Preferred Security, at his registered address, at least 15
days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further
notice.
Section 6.03. Meetings of Holders of Preferred
Securities. No annual meeting of Securityholders is required to
be held. The Administrative Trustees, however, shall call a
meeting of Securityholders to vote on any matter upon the written
request of the Holders of 25% of the then outstanding Preferred
Securities (based upon their aggregate Liquidation Amount) and
may, at any time in their discretion, call a meeting of Holders
of Preferred Securities to vote on any matters as to the which
Holders of Preferred Securities are entitled to vote.
Holders of 50% of the then outstanding Preferred
Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any
meeting of Securityholders.
If a quorum is present at a meeting, an affirmative
vote by the Holders of Preferred Securities present, in person or
by proxy, holding more than the lesser of (x) 66 2/3% of the then
outstanding Preferred Securities (based upon their aggregate
Liquidation Amount) held by the Holders of then outstanding
Preferred Securities present, either in person or by proxy, at
such meeting and (y) 50% of the outstanding Preferred Securities
(based upon their aggregate liquidation amount) shall constitute
the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.
Section 6.04. Voting Rights. Securityholders shall be
entitled to one vote for each $25 of Liquidation Amount
represented by their Trust Securities in respect of any matter as
to which such Securityholders are entitled to vote.
Section 6.05. Proxies, etc. At any meeting of
Securityholders, any Securityholder entitled to vote thereat may
vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustee may direct, for
verification prior to the time at which such vote shall be taken.
Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several Persons, any one of
them may vote at any meeting in person or by proxy in respect of
such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of
a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, or, if earlier, until eleven months after
it is sent and the burden of proving invalidity shall rest on the
challenger.
Section 6.06. Securityholder Action by Written
Consent. Any action which may be taken by Securityholders at a
meeting may be taken without a meeting if Securityholders holding
more than a majority of all outstanding Trust Securities entitled
to vote in respect of such action (or such larger proportion
thereof as shall be required by any express provision of this
Trust Agreement) shall consent to the action in writing (based
upon their aggregate Liquidation Amount).
Section 6.07. Record Date for Voting and Other
Purposes. For the purposes of determining the Securityholders
who are entitled to notice of and to vote at any meeting or by
written consent, or to participate in any distribution on the
Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees may from
time to time fix a date, not more than 90 days prior to the date
of any meeting of Securityholders or the payment of distribution
or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record
for such purposes.
Section 6.08. Acts of Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such
instrument or instruments are delivered to the Administrative
Trustees. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject
to Section 8.01) conclusive in favor of the Trustees, if made in
the manner provided in this Section.
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgements of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which any Trustee deems sufficient.
The ownership of Preferred Securities shall be proved
by the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
liquidation amount.
If any dispute shall arise between the Securityholders
and the Administrative Trustees or among such Securityholders or
Trustees with respect to the authenticity, validity or binding
nature of any request, demand, authorization, direction, consent,
waiver or other Act of such Securityholder or Trustee under this
Article VI, then the determination of such matter by the Property
Trustee shall be conclusive with respect to such matter.
Section 6.09. Inspection of Records. Subject to
Section 5.07 concerning access to the list of Securityholders,
upon reasonable notice to the Administrative Trustees and the
Property Trustee, the other records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE VII.
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee. The Property Trustee
hereby represents and warrants for the benefit of the Depositor
and the Securityholders that:
(a) the Property Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Property Trustee and constitutes
the valid and legally binding agreement of the Property Trustee
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the
Property Trustee of this Trust Agreement will not violate,
conflict with or constitute a breach of the Property Trustee's
charter or by-laws; and
(e) neither the authorization, execution or delivery
by the Property Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee
contemplated herein require the consent or approval of, the
giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency
under any existing Federal law governing the banking or trust
powers of the Property Trustee or under the laws of the State of
New York;
Section 7.02. Delaware Trustee. The Delaware Trustee
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(a) the Delaware Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Delaware Trustee and constitutes
the valid and legally binding agreement of the Delaware Trustee
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement will not violate the
Delaware Trustee's charter or by-laws; and
(e) neither the authorization, execution or delivery
by the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Delaware Trustee
contemplated herein require the consent or approval of, the
giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency
under any existing Federal law governing the banking or trust
powers of the Delaware Trustee or under the laws of the State of
Delaware.
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, the Trust Indenture Act, and no implied
covenants or obligations shall be read into this Trust Agreement
against any of the Trustees. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require any of the
Trustees to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Notwithstanding anything
contained in this Trust Agreement to the contrary, the duties and
responsibilities of the Property Trustee under this Trust
Agreement shall be subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust
Agreement, the Trust Indenture Act and, to the extent applicable,
Rule 3A-7 under the Investment Company Act of 1940, or any
successor rule thereunder. Whether or not therein expressly so
provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to
the Trustees shall be subject to the provisions of this Section.
(b) All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made
only from the income and proceeds from the Trust Property and
only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee
or Paying Agent to make payments in accordance with the terms
hereof. Each Securityholder, by its acceptance of a Trust
Security, agrees that it will look solely to the income and
proceeds from the Trust Property to the extent available for
distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not
limit the liability of the Trustees expressly set forth elsewhere
in this Trust Agreement or, in the case of the Property Trustee,
in the Trust Indenture Act.
(c) All duties and responsibilities of the Property
Trustee contained in this Trust Agreement are subject to the
following:
(i) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of
the Trust Property shall be to deal with such property
in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the
protections and limitations on liability afforded to
the Property Trustee under this Trust Agreement, the
Trust Indenture Act and Rule 3a-7 thereunder;
(ii) the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the Trust
Property or the payment of any taxes or assessments
levied thereon or in connection therewith;
(iii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Depositor. Money held by the
Property Trustee need not be segregated from other
funds held by it except in relation to the Payment
Account established by the Property Trustee pursuant to
this Trust Agreement and except to the extent otherwise
required by law; and
(iv) the Property Trustee shall not be responsible
for monitoring the compliance by the Administrative
Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
Section 8.02. Notice of Defaults. Within five
Business Days after the occurrence of any Event of Default, the
Property Trustee shall transmit, in the manner and to the extent
provided in Section 10.08, notice of any default known to the
Property Trustee to the Securityholders and the Depositor, unless
such default shall have been cured or waived. For the purpose of
this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of
Default.
Section 8.03. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.01 and except as provided
by law:
(i) the Property Trustee may rely and shall be
protected in acting or refraining from acting in good
faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or
transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal,
bond, debenture, note, other evidence of indebtedness
or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the
proper party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action or (B) in
construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
herein or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of
action to be taken. The Property Trustee shall take
such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee
shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall
be promptly delivered by the Depositor or the
Administrative Trustees;
(iv) the Property Trustee may consult with counsel of
its selection and the written advice of such counsel or
any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(v) the Property Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to
this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in compliance
with such request or direction;
(vi) the Property Trustee shall not be bound to make
any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, approval, bond, debenture, note or other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine, unless
requested in writing to do so by one or more
Securityholders, but the Property Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit, and, if the Property Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of
the Depositor personally or by agent or attorney;
(vii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents
or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care
by it hereunder, provided that the Property Trustee
shall be responsible for its own negligence or
recklessness with respect to selection of any agent or
attorney appointed by it hereunder.
(viii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in
good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Trust Agreement;
(ix) the Property Trustee shall not be charged with
knowledge of any default or Event of Default with
respect to the Trust Securities unless either (1) a
responsible officer of the Property Trustee shall have
actual knowledge of the default or Event of Default or
(2) written notice of such default or Event of Default
shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Holder
of the Trust Securities;
(x) no provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property
Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed
on it in any jurisdiction in which it shall be illegal,
or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such
right, power, duty or obligation; and no permissive or
discretionary power or authority available to the
Property Trustee shall be construed to be a duty; and
(xi) no provision of this Trust Agreement shall
require the Property Trustee to expend or risk its own
funds or otherwise incur personal financial liability
in the performance of any of its duties or in the
exercise of any of its rights or powers, if the
Property Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
(xii) the Property Trustee shall have no duty to see
to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any tax or securities) (or any
rerecording, refiling or registration thereof);
(xiii) the Property Trustee shall have the right at any
time to seek instructions concerning the administration
of this Trust Agreement from any court of competent
jurisdiction; and
(xiv) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder
the Property Trustee (i) may request instructions from
the Holders of the Trust Securities, which instructions
may only be given by the Holders of the same proportion
and liquidation amount of the Trust Securities as would
be entitled to direct the Property Trustee under the
terms of this Trust Agreement in respect of such
remedies, rights or actions, (ii) may refrain from
enforcing such remedy or right or taking such other
action until such instructions are received, and
(iii) shall be protected in acting in accordance with
such instructions.
Section 8.04. Not Responsible for Recitals or Issuance
of Securities. The recitals contained herein and in the Trust
Securities Certificates shall be taken as the statements of the
Trust, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part
thereof, nor as to the validity or sufficiency of this Trust
Agreement or the Trust Securities. The Trustee shall not be
accountable for the use or application by the Trust of the
proceeds of the Trust Securities in accordance with Section 2.05.
Section 8.05. May Hold Securities. Except as provided
in the definition of the term "Outstanding" in Article I, any
Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee
of Trust Securities and may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such
other agent.
Section 8.06. Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time
reasonable compensation for all services rendered by the
Trustees hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (gross negligence,
in the case of any Administrative Trustee), bad faith or
willful misconduct; and
(3) to indemnify each Trustee for, and to hold each
Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), bad
faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of this
Trust Agreement, including the reasonable costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of
the Depositor under this Section, each of the Trustees shall have
a lien prior to the Trust Securities upon all property and funds
held or collected by such Trustee as such, except funds held in
trust for the payment of Distributions on the Trust Securities.
The provisions of this Section shall survive the
termination of this Trust Agreement.
Section 8.07. Certain Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a
Person that has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the
Property Trustee with respect to the Trust Securities shall cease
to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
(b) There shall at all times be one or more
Administrative Trustees hereunder with respect to the Trust
Securities. Each Administrative Trustee shall be either a
natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized
to bind such entity.
(c) There shall at all times be a Delaware Trustee
with respect to the Trust Securities. The Delaware Trustee
shall either be (i) a natural person who is at least 21
years of age and a resident of the State of Delaware or (ii)
a legal entity with its principal place of business in the
State of Delaware that otherwise meets the requirements of
applicable Delaware law and that shall act through one or
more persons authorized to bind such entity.
Section 8.08. Conflicting Interests.
If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Indenture.
The Subordinated Indenture and the Guarantee Agreement shall be
deemed to be specifically described in this Trust Agreement for
the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
Section 8.09. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the
time be located, the Depositor and the Property Trustee shall
have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the
other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a
request so to do, or in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment.
Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for
more fully confirming to such co-trustee or separate trustee such
property, title, right, or power, any and all such instruments
shall, on request, be executed, acknowledged, and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following terms, namely:
(1) The Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustees designated for such purpose
hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred
or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or
separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such
Act, in which event such rights, powers, duties, and
obligations shall be exercised and performed by such co-
trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of
the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section
8.09, and, in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join
with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned
or removed may be appointed in the manner provided in this
Section.
(4) No co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section 8.10. Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (as the case
may be, the "Relevant Trustee") and no appointment of a successor
Relevant Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section
8.11.
The Relevant Trustee may resign at any time with
respect to the Trust Securities by giving written notice thereof
to the Securityholders. If the instrument of acceptance by a
successor Relevant Trustee required by Section 8.11 shall not
have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the resigning Relevant
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee with respect to the
Trust Securities.
Unless an Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by
Act of the Common Securityholder. If an Event of Default shall
have occurred and be continuing, the Relevant Trustee may be
removed at such time by Act of the Securityholders of a majority
of the aggregate Liquidation Amount of the Preferred Securities
Certificates, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or
become incapable of continuing to act as Relevant Trustee at a
time when no Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees with
respect to the Trust Securities and the Trust, and the retiring
Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If the Relevant Trustee shall resign, be removed
or become incapable of continuing to act as the Relevant Trustee
at a time when an Event of Default shall have occurred and be
continuing, the Preferred Securityholders, by Act of the
Preferred Securityholders of a majority in Liquidation Amount of
the Preferred Securities then outstanding delivered to the
retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees with respect to the Trust Securities
and the Trust, and the Relevant Trustee shall comply with the
applicable requirements of Section 8.11. If no successor
Relevant Trustee with respect to the Trust Securities shall have
been so appointed by the Common Securityholders or the Preferred
Securityholders and accepted appointment in the manner required
by Section 8.11, any Securityholder who has been a Securityholder
of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor
Relevant Trustee with respect to the Trust Securities.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee with respect
to the Trust Securities and the Trust and each appointment of a
successor Trustee with respect to the Trust Securities and the
Trust to all Securityholders in the manner provided in Section
10.08 and shall give notice to the Depositor. Each notice shall
include the name and address of the successor Relevant Trustee
with respect to the Trust Securities and the Trust and, in the
case of the Property Trustee, the address of its Corporate Trust
Office.
Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or
a Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act
of remaining Administrative Trustees if there are at least two of
them or (ii) otherwise by the Depositor (with the successor in
each case being an individual who satisfies the eligibility
requirement for Administrative Trustees or Delaware Trustee, as
the case may be, set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes
that any Administrative Trustee who is a natural person has
become incompetent or incapacitated, the Depositor, by notice to
the remaining Trustees, may terminate the status of such Person
as an Administrative Trustee (in which case the vacancy so
created will be filled in accordance with the preceding
sentence).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant
Trustee with respect to all Trust Securities and the Trust, every
such successor Relevant Trustee so appointed shall execute,
acknowledge and deliver to the Trust and to the retiring Relevant
Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Relevant Trustee shall
become effective and such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Relevant
Trustee; but, on the request of the Depositor or the successor
Relevant Trustee, such retiring Relevant Trustee shall, upon
payment of its charges by the Depositor, execute and deliver an
instrument transferring to such successor Relevant Trustee all
the rights, powers and trusts of the retiring Relevant Trustee
and shall duly assign, transfer and deliver to such successor
Relevant Trustee all property and money held by such retiring
Relevant Trustee hereunder, subject, nevertheless, to the
retiring Trustee's prior lien provided for in Section 8.06.
In case of the appointment hereunder of a successor
Relevant Trustee with respect to the Trust Securities and the
Trust, the retiring Relevant Trustee and each successor Trustee
with respect to the Trust Securities shall execute and deliver an
amendment hereto wherein each successor Relevant Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all
the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Trust and
(2) shall add to or change any of the provisions of this Trust
Agreement as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Relevant
Trustee, it being understood that nothing herein or in such
amendment shall constitute such Relevant Trustees co-trustees of
the same trust and that each such Relevant Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Relevant Trustee and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and
each such successor Relevant Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee with
respect to the Trust Securities and the Trust; but, on request of
the Trust or any successor Relevant Trustee such retiring
Relevant Trustee shall duly assign, transfer and deliver to such
successor Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee,
the retiring Relevant Trustee shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor
Relevant Trustee shall be qualified and eligible under this
Article VIII.
Section 8.12. Merger, Conversion, Consolidation or
Succession to Business. Any Person into which the Property
Trustee or the Delaware Trustee or any Trustee that is not a
natural person may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion
or consolidation to which such Relevant Trustee shall be a party,
or any Person succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the
successor of such Relevant Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this
Article VIII, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 8.13. Preferential Collection of Claims
Against Depositor or Trust. If and when the Property Trustee
shall be or become a creditor of the Depositor or the Trust (or
any other obligor upon the Debentures or the Trust Securities),
the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against
the Depositor or Trust (or any such other obligor).
Section 8.14. Reports by Property Trustee.
(a) Within 60 days after December 31 of each year commencing
with December 31, 1995 the Property Trustee shall transmit by
mail to all Securityholders, as their names and addresses appear
in the Register, and to the Depositor, a brief report dated as of
such December 31 with respect to:
(i) its eligibility under Section 8.07 or, in lieu
thereof, if to the best of its knowledge it has
continued to be eligible under said Section, a written
statement to such effect;
(ii) a statement that the Property Trustee has
complied with all of its obligations under this Trust
Agreement during the twelve-month period (or, in the
case of the initial report, the period since the
Closing Date) ending with such December 31 or, if the
Property Trustee has not complied in any material
respect with such obligations, a description of such
non-compliance; and
(iii) any action taken by the Property Trustee in the
performance of its duties hereunder which it has not
previously reported and which in its opinion materially
affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and
its actions under this Trust Agreement as may be required
pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee
with each stock exchange upon which the Trust Securities are
listed, with the Commission and with the Depositor.
Section 8.15. Reports to the Property Trustee. The
Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and
information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
Section 8.16. Evidence of Compliance With Conditions
Precedent. Each of the Depositor and the Administrative Trustees
on behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement (including any covenants
compliance with which constitutes a condition precedent) that
relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act may be given in the form of an Officers'
Certificate.
Section 8.17. Number of Trustees.
(a) The number of Trustees shall be five, provided
that Depositor, by written instrument may increase or decrease
the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason
and the number of Administrative Trustees is not reduced pursuant
to Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The
vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such
vacancy is filled by the appointment of an Administrative Trustee
in accordance with Section 8.10, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted
to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section
2.07(a), including any registration statement or amendment
thereto filed with the Commission, or making any other
governmental filing; and
(b) the Administrative Trustees shall have power to
delegate from time to time to such of their number the doing of
such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 8.19. Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Trust Agreement
shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person;
or
(ii) whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that
an Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each
party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary
or accepted industry practices, and any applicable
generally accepted accounting practices or principles.
In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute
a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise;
and
(c) Whenever in this Trust Agreement an Indemnified
Person is permitted or required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires,
including its own interests, and shall have no duty or
obligation to give any consideration to any interest of
or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other
or different standard imposed by this Trust Agreement
or by applicable law.
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date. The
Trust shall automatically terminate on December 31, 2035 (the
"Expiration Date") and the Trust Property shall be distributed in
accordance with Section 9.04.
Section 9.02. Early Termination. Upon the first to
occur of any of the following events (such first occurrence, an
"Early Termination Event"):
(i) the occurrence of a Bankruptcy Event,
dissolution or liquidation of, in respect of, the
Depositor;
(ii) the redemption of all of the Preferred
Securities;
(iii) the occurrence of a Tax Event;
(iv) an order for judicial termination of the Trust
having been entered by a court of competent
jurisdiction;
the Trust shall terminate and the Trustees shall take such action
as is required by Section 9.04.
Section 9.03. Termination. The respective obligations
and responsibilities of the Trust and the Trustees created hereby
shall terminate upon the latest to occur of the following: (i)
the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.04, or upon
the redemption of all of the Trust Securities pursuant to Section
4.02 or 9.04(d), of all amounts required to be distributed
hereunder upon the final payment of the Trust Securities; (ii)
the payment of any expenses owed by the Trust; and (iii) the
discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section 9.04. Liquidation. (a) If an Early
Termination Event specified in clause (i) or (iv) of Section 9.02
occurs, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, the Trust shall be
liquidated by the Property Trustee as expeditiously as the
Property Trustee determines to be appropriate by distributing
to each Securityholder a Like Amount of Debentures, subject to
Section 9.04(e). Notice of liquidation shall be given by the
Administrative Trustees by first-class mail, postage prepaid,
mailed not later than 30 nor more than 60 days prior to the
Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Security Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be
outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a
Like Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or if Section
9.04(e) applies receive a Liquidation Distribution, as
the Administrative Trustee or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.02(ii) or 9.04(d) or (e)
applies, in order to affect the liquidation of the Trust, if any,
and distribution of the Debentures to Securityholders, the
Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall
establish such procedures as it shall deem appropriate to effect
the distribution of Debentures in exchange for the Outstanding
Trust Securities Certificates.
(c) Except where Section 9.02(ii) or 9.04(d) or (e)
applies, after the Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Debentures will be issued to
Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for
exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like
Amount of Debentures, accruing interest at the rate provided for
in the Debentures from the last Distribution Date on which a
Distribution was made on such Trust Certificates until such
certificates are so surrendered (and until such certificates are
so surrendered, no payments or interest or principal will be made
to Holders of Trust Securities Certificates with respect to such
Debentures) and (iv) all rights of Securityholders holding Trust
Securities will cease, except the right of such Securityholders
to receive Debentures upon surrender of Trust Securities
Certificates.
(d) If at any time, a Tax Event shall occur and be
continuing, the Administrative Trustees shall, unless the
Debentures are redeemed in the limited circumstances described
below, terminate the Trust and, after satisfaction of creditors
of the Trust, if any, as provided by applicable law cause
Debentures held by the Property Trustee having a Like Amount of
the Preferred Securities and the Common Securities to be
distributed to the Holders of the Preferred Securities and the
Common Securities on a pro rata basis in liquidation of such
Holders' interests in the Trust, within 90 days following the
occurrence of such Tax Event; provided, however, that as a
condition of such termination and distribution, the
Administrative Trustees shall have received an opinion of
nationally recognized independent tax counsel experienced in such
matters (a "No Recognition Opinion"), which opinion may rely on
any then applicable published revenue rulings of the Internal
Revenue Service, to the effect that the Holders of the Preferred
Securities will not recognize any gain or loss for United States
federal income tax purposes as a result of the termination of the
Trust and distribution of Debentures; and, provided, further,
that, if and as long as at the time there is available to the
Trust the opportunity to eliminate, within such 90-day period,
the Tax Event by taking some ministerial action, such as filing a
form or making an election, or pursuing some other similar
reasonable measure which has no adverse effect on the Trust, the
Depositor or the Holders of the Preferred Securities, the Trust
will pursue such measure in lieu of termination. Furthermore, if
(i) the Administrative Trustees have received an opinion of
nationally recognized independent tax counsel experienced in such
matters (a "Redemption Tax Opinion") that, as a result of a Tax
Event, there is more than an insubstantial risk that the
Depositor would be precluded from deducting the interest on the
Debentures for United States federal income tax purposes even if
the Debentures were distributed to the Holders of Preferred
Securities and Common Securities in liquidation of such Holders'
interests in the Trust as described above or (ii) the
Administrative Trustees shall have been informed by such tax
counsel that a No Recognition Opinion cannot be delivered to the
Trust, the Depositor shall have the right, upon not less than 30
nor more than 60 days' notice, to redeem the Debentures in whole
or in part for cash at the Redemption Price plus accumulated and
unpaid Distributions to the date of such payment within 90 days
following the occurrence of such Tax Event, and promptly
following such redemption Preferred Securities and Common
Securities with an aggregate liquidation preference amount equal
to the aggregate principal amount of the Debentures so redeemed
will be redeemed by the Trust at the Redemption Price plus
accumulated and unpaid Distributions on a pro rata basis,
provided, however, that if at the time there is available to the
Depositor or the Administrative Trustees on behalf of the Trust
the opportunity to eliminate, within such 90-day period, the Tax
Event by taking some ministerial action, such as filing a form or
making an election, or pursuing some other similar reasonable
measure, which has no adverse effect on the Trust, the Depositor
or the Holders of the Preferred Securities, the Depositor or the
Administrative Trustees on behalf of the Trust will pursue such
measure in lieu of redemption and provided further that the
Depositor shall have no right to redeem the Debentures while the
Administrative Trustees on behalf of the Trust are pursuing any
such ministerial action. The Common Securities will be redeemed
on a pro rata basis with the Preferred Securities, except that if
an Event of Default has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities with
respect to payment of the Redemption Price and accumulated and
unpaid Distributions to the date of such payment.
(e) In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order for
termination entered by a court of competent jurisdiction or
otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical,
the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in
such manner as the Property Trustee determines. In such event,
on the date of the dissolution, winding-up or other termination
of the Trust, Securityholders will be entitled to receive out of
the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors
of the Trust, if any, as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If,
upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the
Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Depositor will be entitled to receive
Liquidation Distributions upon any such dissolution, winding-up
or termination pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if an Event of Default has
occurred and is continuing or if an Event of Default has not
occurred solely by reason of a requirement that time lapse or
notice be given, the Preferred Securities shall have a priority
over the Common Securities.
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and
Assumption of Obligations. Subject to the terms and conditions
hereof, the Depositor irrevocably and unconditionally guarantees
to each Person to whom the Trust is now or hereafter becomes
indebted or liable (the "Beneficiaries"), and agrees to assume
liability for, the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As
used herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than obligations of the Trust to
pay to Holders or other similar interests in the Trust the
amounts due such Holders pursuant to the terms of the Preferred
Securities or such other similar interests, as the case may be.
This guarantee and assumption is intended to be for the benefit,
of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
Section 10.02. Limitation of Rights of
Securityholders. The death or incapacity of any person having an
interest, beneficial or otherwise, in a Trust Security shall not
operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such person or any Securityholder for
such person, to claim an accounting, take any action or bring any
proceeding in any court for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any
of them.
Section 10.03. Amendment.
(a) This Trust Agreement may be amended from time to
time by the Trust (on approval of a majority of the
Administrative Trustees and the Depositor, without the consent of
any Securityholder, (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement or
(ii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the
Trust will not be classified for United States federal income tax
purposes other than as a "grantor trust" and not as an
association taxable as a corporation at any time that any Trust
Securities are outstanding or to ensure the Trust's exemption
from the status of an "investment company" under the Investment
Company Act of 1940, as amended; provided, however, that, except
in the case of clause (ii), such action shall not adversely
affect in any material respect the interests of any
Securityholder and, in the case of clause (i), any amendments of
this Trust Agreement shall become effective when notice thereof
is given to the Securityholders.
(b) Except as provided in Section 10.03(c), any
provision of this Trust Agreement may be amended by the
Administrative Trustees and the Depositor with (i) the consent of
Holders of Trust Securities representing not less than a majority
(based upon Liquidation Amounts) of the Trust Securities then
outstanding and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any
power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for federal
income tax purposes or the Trust's exemption from status of an
"investment company" under the Investment Company Act of 1940, as
amended.
(c) In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each
affected Securityholder (such consent being obtained in
accordance with Section 6.03 or 6.06), this Trust Agreement may
not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii)
restrict the right of a Securityholder to institute suit for the
enforcement of any such payment on or after such date.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust to
fail or cease to qualify for the exemption from status of an
"investment company" under the Investment Company Act of 1940, as
amended, afforded by Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement
to the contrary, without the consent of the Depositor and the
Trustees, this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the Depositor or any
Trustee.
(f) In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly
provide to the Depositor a copy of such amendment.
(g) The Property Trustee is entitled to receive an
Opinion of Counsel as conclusive evidence that any amendment to
this Trust Agreement executed pursuant to this Section 10.03 is
authorized or permitted by, and conforms to, the terms of this
Section 10.03, has been duly authorized by and lawfully executed
and delivered on behalf of the other requisite parties, and that
it is proper for the Property Trustee under the provisions of
this Section 10.03 to join in the execution thereof.
Section 10.04. Separability. In case any provision in
this Trust Agreement or in the Trust Securities Certificates
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 10.05. GOVERNING LAW. THIS TRUST AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS,
THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES).
Section 10.06. Successors. This Trust Agreement shall
be binding upon and shall inure to the benefit of any successor
to the Trust or the Relevant Trustees or any of them, including
any successor by operation of law.
Section 10.07. Headings. The Article and Section
headings are for convenience only and shall not affect the
construction of this Trust Agreement.
Section 10.08. Notice and Demand. Any notice, demand
or other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or
upon any Securityholder or the Depositor may be given or served
in writing by deposit thereof, postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each
case, addressed, (i) in the case of a Preferred Securityholder,
to such Preferred Securityholder as such Securityholder's name
and address may appear on the Securities Register and (ii) in the
case of the Common Securityholder or the Depositor, to Texas
Utilities Electric Company, Energy Plaza, 0000 Xxxxx Xxxxxx,
Xxxxxx, Xxxxx 00000, Attention: Treasurer, facsimile no. 214-812-
[ ], with a copy to the Secretary, facsimile no. 214-812-[ ].
Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the
Trust) as follows: (i) with respect to the Property Trustee or
the Delaware Trustee, The Bank of New York, 000 Xxxxxxx Xxxxxx,
Xxxxx 00 Xxxx, Xxx Xxxx, XX 00000, Attention: Corporate Trust
Department with a copy to: The Bank of New York (Delaware), Xxxxx
Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Department and (ii) with respect to the Trust or
the Administrative Trustees, at the address above for notice to
the Depositor, marked "Attention: Administrative Trustees for TU
Electric Capital II". Such notice, demand or other communication
to or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of
the writing by the Trust or the Property Trustee.
Section 10.09. Agreement Not to Petition. Each of the
Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders, that it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in
writing not to take such action and should be stopped and
precluded therefrom and such other defenses, if any, as counsel
for the Property Trustee or the Trust may assert. The provisions
of this Section 10.09 shall survive the termination of this Trust
Agreement.
Section 10.10. Conflict with Trust Indenture Act. (a)
This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust
Agreement and shall, to the extent applicable, be governed by
such provisions.
(b) The Property Trustee shall be the only Trustee
which is a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required or deemed
provision shall control.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Securities as
equity securities representing interests in the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
IN WITNESS WHEREOF, the parties have caused this Amended and
Restated Trust Agreement to be duly executed, all as of the day
and year first above written.
TEXAS UTILITIES ELECTRIC COMPANY
By:
-----------------------------
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:
-----------------------------
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
-----------------------------
Title:
-----------------------------
Xxxxx Xxxxxxxxx
solely in his capacity as
Administrative Trustee
-----------------------------
Xxxxxxx Xxxxx
solely in her capacity as
Administrative Trustee
-----------------------------
Xxxxxxx Xxxxxxx
solely in his capacity as
Administrative Trustee
EXHIBIT A
CERTIFICATE OF TRUST
OF
TU ELECTRIC CAPITAL III
THIS CERTIFICATE OF TRUST of TU Electric Capital III (the
"Trust"), dated as of October 17, 1995, is being duly executed
and filed by the undersigned, as trustees, to form a business
trust under the Delaware Business Trust Act (12 Del. C. ss. 3801,
-------
et seq.).
------
1. Name. The name of the business trust being formed
hereby is TU Electric Capital III.
2. Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in
the State of Delaware are The Bank of New York (Delaware), Xxxxx
Xxxx Center, Xxxxx 000, Xxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx
00000.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
THE BANK OF NEW YORK (DELAWARE), XXXXX XXXXXXXXX,
not in its individual capacity not in his individual
but solely as Trustee capacity but solely
as Trustee
By: By:
--------------- ----------------
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:
----------------
Name:
Title:
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-[ ]
Certificate Evidencing Common Securities
of
TU Electric Capital III
Common Securities
(liquidation amount $25 per Common Security)
TU Electric Capital III, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"),
hereby certifies that Texas Utilities Electric Company (the
"Holder") is the registered owner of _____ (_____) common
securities of the Trust representing undivided beneficial
interests in the assets of the Trust and designated the Common
Securities (liquidation amount $25 per Common Security) (the
"Common Securities"). In accordance with Section 5.10 of the
Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void.
The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of _______ ___, 1995, as
the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy
of the Trust Agreement to the Holder without charge upon written
request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound
by the Trust Agreement and is entitled to the benefits
thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the
Trust has executed this certificate for and on behalf of the
Trust this ____ day of _________, 199__.
TU Electric Capital III
By:
-------------------------------
not in his (her) individual
capacity, but solely as
Administrative Trustee
EXHIBIT C
Previously filed as Exhibit 4(d)
EXHIBIT D
Previously filed as Exhibit 4(f)
