1
Exhibit 4.3
TRUST AGREEMENT, dated as of June 7, 2001, among (i) The Cleveland
Electric Illuminating Company, an Ohio corporation (the "Depositor" or
"Cleveland Electric"), (ii) The Bank of New York, a banking corporation duly
organized and existing under the laws of New York, as trustee (the "Property
Trustee"), (iii) The Bank of New York (Delaware), a banking corporation duly
organized under the laws of Delaware, as Delaware trustee (the "Delaware
Trustee"), and (iv) Xxxxxx Xxxxx, an individual, and Xxxxx Xxxxxx, an
individual, each of whose address is c/o The Cleveland Electric Illuminating
Company, 00 Xxxxx Xxxx Xxxxxx, Xxxxx, Xxxx 00000, as trustees (each an
"Administrative Trustee" and together the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees"). The Depositor and the Trustees hereby agree
as follows:
1. The trust created hereby shall be known as "Cleveland Electric
Financing Trust I" (the "Trust"), in which name the Trustees, or the Depositor
to the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. Such amount shall constitute the initial trust estate.
The Trustees hereby declare that they will hold the trust estate in trust for
the Depositor. It is the intention of the parties hereto that the Trust created
hereby constitutes a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. ss. 3801 et seq. (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State substantially in the form attached hereto.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form included as Exhibit 4.2 to the 1933 Act Registration Statement referred
to below, to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities and the Common Securities referred
to therein. Prior to the execution and delivery of such amended and restated
Trust Agreement, the Trustees shall not have any duty or obligation hereunder or
with respect of the trust estate, except as otherwise required by applicable law
or as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the Depositor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-2 (the "1933
Act Registration Statement") and any pre-effective or post-effective amendments
to such Registration Statement, relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Securities of the Trust,
and (b) a Registration Statement on Form 8-A (the "1934 Act Registration
Statement") (including all pre-effective and post-effective amendments thereto)
relating to the registration of the Preferred Securities of the Trust under
Section 12(b) of the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock Exchange and execute on behalf of the Trust a listing
application and all other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on the New York Stock Exchange; (iii) to
2
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process and
other papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or
desirable, (iv) to execute and deliver letters or documents to, or instruments
for filing with a depository relating to the Preferred Securities of the Trust,
and (v) to execute on behalf of the Trust an Underwriting Agreement among the
Trust, the Depositor and the underwriters named therein, substantially in the
form to be included as Exhibit 1(a) of the 1933 Act Registration Statement. In
the event that any filing referred to in clauses (i), (ii) or (iii) above is
required by the rules and regulations of the Commission, the New York Stock
Exchange or state securities or Blue Sky laws, to be executed on behalf of the
Trust by the Trustees, Xxxxxx Xxxxx and Xxxxx Xxxxxx, in their capacities as
Administrative Trustees of the Trust, are hereby authorized and directed to join
in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that The Bank of New York and The Bank of New
York (Delaware), in their capacities as Property Trustee and Delaware Trustee of
the Trust, respectively, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commission, the New York Stock Exchange or state
securities or Blue Sky laws. In connection with the filings referred to in
clauses (i),(ii) or (iii) above, the Depositor and each Trustee, solely in its
capacity as Trustee of the Trust and not in its individual capacity, hereby
constitutes and appoints Xxxx X. Xxxxxxxx, Xx. and Xxxxx X. Xxxxxx, and each of
them, as his, her or its, as the case may be, true and lawful attorneys-in-fact,
and agents, with full power of substitution and resubstitution, for the
Depositor or such Trustee or in the Depositor's or such Trustee's name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor or such Trustee might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his or her substitute
or substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be four (4) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that the number of Trustees shall in
no event be less than four (4); and provided, further that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware.
Subject to the foregoing, the Depositor is entitled to appoint or remove without
cause any Trustee at any time. Any of the Trustees may resign upon thirty days
prior notice to the Depositor.
7. The Trust may be dissolved and terminated before the issuance of the
preferred securities of the Trust at the election of the Depositor.
2
3
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY,
as Depositor
By: /s/ XXXXXX X. XXXXX
-------------------
Xxxxxx X. Xxxxx
Treasurer
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Property Trustee
By: /s/ XXXXXXX XXXXXXX
-------------------
Xxxxxxx X. Xxxxxxx
Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as Delaware Trustee
By: /s/ XXXXXXX XXXXXXX
-------------------
Xxxxxxx Xxxxxxx
Senior Vice President
/s/ XXXXXX XXXXX
----------------
Xxxxxx Xxxxx,
not in his individual capacity but
solely as Administrative Trustee
/s/ XXXXX XXXXXX
----------------
Xxxxx Xxxxxx,
not in his individual capacity but
solely as Administrative Trustee
3
