AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 7, 1998
REGISTRATION NOS. 333-____ AND 333-____-01
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
ENSERCH Corporation
(Exact name of registrant as specified in its charter)
TEXAS 75-0399066
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
ENSERCH CAPITAL I
(Exact name of registrant as specified in its charter)
DELAWARE TO BE APPLIED FOR
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
ENERGY PLAZA, 1601 BRYAN STREET
DALLAS, TEXAS 75201
(214) 812-4600
(Address, including zip code, and telephone number, including
area code, of registrants principal executive offices)
ROBERT A. WOOLDRIDGE, PETER B. TINKHAM ROBERT J. REGER, JR.,
ESQ. EXECUTIVE VICE PRESIDENT ESQ.
WORSHAM, FORSYTHE TEXAS UTILITIES SERVICES INC. REID & PRIEST LLP
& WOOLDRIDGE, L.L.P. ENERGY PLAZA 40 WEST 57TH STREET
ENERGY PLAZA, 1601 1601 BRYAN STREET NEW YORK, NEW YORK
BRYAN STREET DALLAS, TEXAS 75201 10019
Dallas, Texas 75201 (214) 812-4600 (212) 603-2000
(214) 979-3000
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
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IT IS RESPECTFULLY REQUESTED THAT THE COMMISSION SEND COPIES OF
ALL NOTICES, ORDERS AND COMMUNICATIONS TO:
STEPHEN K. WAITE, ESQ.
WINTHROP, STIMSON, PUTNAM & ROBERTS
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004
(212) 858-1000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC: FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT
BECOMES EFFECTIVE WHEN WARRANTED BY MARKET CONDITIONS AND OTHER
FACTORS.
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE
BEING OFFERED PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT
PLANS, PLEASE CHECK THE FOLLOWING BOX. [ ]
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE
TO BE OFFERED ON A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE
415 UNDER THE SECURITIES ACT OF 1933, OTHER THAN SECURITIES
OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST REINVESTMENT
PLANS, CHECK THE FOLLOWING BOX. [X]
IF THIS FORM IS FILED TO REGISTER ADDITIONAL SECURITIES FOR
AN OFFERING PURSUANT TO RULE 462(B) UNDER THE SECURITIES ACT,
PLEASE CHECK THE FOLLOWING BOX AND LIST THE SECURITIES ACT
REGISTRATION STATEMENT NUMBER OF THE EARLIER EFFECTIVE
REGISTRATION STATEMENT FOR THE SAME OFFERING. [ ]
IF THIS FORM IS A POST-EFFECTIVE AMENDMENT FILED PURSUANT TO
RULE 462(C) UNDER THE SECURITIES ACT, CHECK THE FOLLOWING BOX AND
LIST THE SECURITIES ACT REGISTRATION STATEMENT NUMBER OF THE
EARLIER EFFECTIVE REGISTRATION STATEMENT FOR THE SAME OFFERING. [ ]
IF DELIVERY OF THE PROSPECTUS IS EXPECTED TO BE MADE
PURSUANT TO RULE 434, PLEASE CHECK THE FOLLOWING BOX. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF EACH CLASS AMOUNT TO MAXIMUM MAXIMUM AMOUNT
OF SECURITIES TO BE BE OFFERING AGGREGATE OF
REGISTERED REGISTERED PRICE OFFERING REGISTRATION
PER UNIT PRICE FEE
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ENSERCH Debt
Securities ....... (1)(4) (2) (1)(2)(3)(4) N/A
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ENSERCH Capital I
Preferred Trust
Securities ...... (1)(5) (2) (1)(2)(3)(5) N/A
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ENSERCH Guarantee with
respect to ENSERCH
Capital I Preferred
Trust Securities(6)(7)
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ENSERCH Junior
Subordinated
Debentures(8) .....
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Total ....... $275,000,000 (2) $275,000,000(3) $81,125
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(1) In no event will the aggregate initial offering price of all
Debt Securities and Preferred Trust Securities issued from
time to time pursuant to this Registration Statement exceed
$275,000,000. If any such securities are issued at an
original issue discount, then the aggregate initial offering
price as so discounted shall not exceed $275,000,000,
notwithstanding that the stated principal amount of such
securities may exceed such amount.
(2) The proposed maximum initial offering price per unit will be
determined, from time to time, by the registrants in
connection with the issuance of the Securities registered
hereunder.
(3) Exclusive of accrued interest or distributions, if any.
(4) Subject to footnote (1), there are being registered
hereunder an indeterminate amount of Debt Securities which
may be sold, from time to time, by ENSERCH Corporation.
(5) Subject to footnote (1), there are being registered
hereunder an indeterminate amount of Preferred Trust
Securities which may be sold, from time to time, by ENSERCH
Capital I.
(6) No separate consideration will be received for the ENSERCH
Corporation Guarantee or the Expense Agreement.
(7) This registration is deemed to include the rights of the
Holders of the ENSERCH Capital I Preferred Trust Securities
under the Guarantee, the Trust Agreement, the Junior
Subordinated Debentures, the Subordinated Indenture and the
Expense Agreement, together constituting the backup
undertakings, as described in the Registration Statement.
(8) The Junior Subordinated Debentures will be purchased by
ENSERCH Capital I with the proceeds of the sale of Preferred
and Common Trust Securities of ENSERCH Capital I. No
separate consideration will be received for the Junior
Subordinated Debentures.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON
SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE
DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities
has been filed with the Securities and Exchange Commission.
These securities may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any
sale of these securities in any jurisdiction in which such
offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any
such jurisdiction.
SUBJECT TO COMPLETION, DATED JANUARY __, 1998
PROSPECTUS
$275,000,000
ENSERCH CORPORATION
DEBT SECURITIES
ENSERCH CAPITAL I
PREFERRED TRUST SECURITIES
fully and unconditionally guaranteed as set forth herein by
ENSERCH CORPORATION
ENSERCH Corporation, a Texas corporation (Company), may
offer, from time to time, unsecured debt securities of the
Company consisting of debentures, notes or other unsecured
evidences of indebtedness (excluding the Junior Subordinated
Debentures described herein, Debt Securities). ENSERCH Capital I
(Trust), a statutory business trust created under the laws of the
State of Delaware, may offer, from time to time, securities
representing preferred undivided beneficial interests in the
assets of the Trust (Preferred Trust Securities). Debt
Securities and Preferred Trust Securities are collectively
referred to herein as "Securities."
The payment of periodic cash distributions (Distributions)
with respect to Preferred Trust Securities out of moneys held by
the Trust, and payment on liquidation, redemption or otherwise
with respect to Preferred Trust Securities, will be guaranteed by
the Company to the extent described herein (Guarantee). See
DESCRIPTION OF THE GUARANTEE herein. The Company's obligations
under the Guarantee are subordinate and junior in right of
payment to all other liabilities of the Company. The Trust
exists for the sole purposes of issuing the common undivided
beneficial interests in its assets (Common Trust Securities) and
the Preferred Trust Securities (together, the Trust Securities)
and investing the proceeds thereof in a series of Junior
Subordinated Debentures issued by the Company (Junior
Subordinated Debentures) in an aggregate principal amount equal
to the aggregate liquidation preference of Trust Securities. In
connection with the dissolution of the Trust upon the occurrence
of certain events and after satisfaction of liabilities to
creditors of the Trust, if any, as provided by applicable law,
the Junior Subordinated Debentures purchased by the Trust
subsequently may be distributed pro rata to registered owners of
Trust Securities.
The Securities may be offered in amounts, at prices and on
terms to be determined at the time of offering; provided,
however, that the aggregate initial public offering price of all
Securities shall not exceed $275,000,000.
Specific terms of each issue of Debt Securities in respect
of which this Prospectus is being delivered (Offered Debt
Securities) will be set forth in one or more Prospectus
Supplements with respect to such Offered Debt Securities. The
applicable Prospectus Supplement will describe, without
limitation and where applicable or additional to the terms in the
Prospectus, the following: the title, aggregate principal amount,
<PAGE>
denomination, maturity, premium, if any, rate of interest (which
may be fixed or variable) or method of calculation thereof, time
of payment of interest, any terms for redemption, any sinking
fund provisions, the initial public offering price, the principal
amounts, if any, to be purchased by underwriters and any other
special terms of the Offered Debt Securities.
Specific terms of the Preferred Trust Securities in respect
of which this Prospectus is being delivered (Offered Trust
Securities) and the terms of the related Junior Subordinated
Debentures held by the Trust will be set forth in a Prospectus
Supplement with respect to such Offered Trust Securities. The
applicable Prospectus Supplement will describe, without
limitation and where applicable or additional to the terms
described in this Prospectus, the following: the title, number of
securities, liquidation amount per security, initial public
offering price, any listing on a securities exchange,
Distribution rate (or method of calculation thereof), dates on
which Distributions shall be payable and dates from which
Distributions shall accrue, voting rights, terms for any
conversion or exchange into other securities, any redemption,
exchange or sinking fund provisions, any other rights,
preferences, privileges, limitations or restrictions relating to
the Offered Trust Securities and the terms upon which the
proceeds of the sale of the Offered Trust Securities shall be
used to purchase a specific series of Junior Subordinated
Debentures of the Company.
The Company or the Trust, as the case may be, may sell the
Securities through underwriters, dealers or agents designated
from time to time, or directly to one or more of a limited number
of purchasers. If any agents of the Company and/or the Trust or
any underwriters or dealers are involved in the sales of the
Offered Debt Securities or Offered Trust Securities, as the case
may be, the names of such agents or such underwriters or dealers
and any applicable commissions or discounts will be set forth in
the related Prospectus Supplement. See PLAN OF DISTRIBUTION.
This Prospectus may not be used to consummate sales of
Securities unless accompanied by a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is January , 1998.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company, File No. 1-
3183, with the Securities and Exchange Commission (Commission)
pursuant to the Securities Exchange Act of 1934, as amended (1934
Act), are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December
31, 1996 (1996 10-K).
2. Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997 and September 30, 1997.
3. Current Reports on Form 8-K, dated January 14, 1997,
March 12, 1997, June 5, 1997, July 3, 1997, August 4,
1997, August 6, 1997 and January 6, 1998.
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and prior to
the termination of the offering hereunder shall be deemed to be
incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents; provided,
however, that the documents enumerated above or subsequently
filed by the Company pursuant to Section 13(a), 13(c) or 15(d) of
the 1934 Act prior to the filing with the Commission of the
Company's most recent Annual Report on Form 10-K shall not be
incorporated by reference in this Prospectus or be a part hereof
from and after the filing of such Annual Report on Form 10-K. The
documents which are incorporated by reference in this Prospectus
are sometimes hereinafter referred to as the "Incorporated
Documents."
Any statement contained in an Incorporated Document shall be
deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in
any other subsequently filed document which is deemed to be
incorporated by reference herein or in the Prospectus Supplement
modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO
EACH PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM A COPY OF
THIS PROSPECTUS HAS BEEN DELIVERED, UPON WRITTEN OR ORAL REQUEST
OF ANY SUCH PERSON, A COPY OF ANY AND ALL OF THE INCORPORATED
DOCUMENTS WHICH HAVE BEEN OR MAY BE INCORPORATED IN THIS
PROSPECTUS BY REFERENCE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS
(UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE
INTO SUCH DOCUMENTS). REQUESTS SHOULD BE DIRECTED TO: SECRETARY,
ENSERCH CORPORATION, 1601 BRYAN STREET, DALLAS, TEXAS 75201,
TELEPHONE NUMBER (214) 812-4600.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the 1934 Act and in accordance therewith files reports, proxy and
information statements and other information with the Commission.
Such reports, proxy and information statements and other
information filed by the Company can be inspected and copied at
the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the following Regional Offices of the Commission: Chicago
Regional Office, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511; and New York Regional Office, 7 World Trade
Center, Suite 1300, New York, New York 10048. Copies of such
material can also be obtained from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. In addition, the Commission maintains
a World Wide Web site (http://www.sec.gov) that contains reports,
proxy and information statements, and other information filed by
the Company. Certain Depositary Shares representing fractional
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<PAGE>
interests in shares of cumulative preferred stock of the Company
are listed on the New York Stock Exchange, where reports and other
information concerning the Company may be inspected.
Securityholders of the Company may obtain, upon request,
copies of an Annual Report on Form 10-K containing financial
statements as of the end of the most recent fiscal year audited
and reported upon (with an opinion expressed) by independent
auditors.
No separate financial statements of the Trust are included
herein. The Company considers that such financial statements
would not be material to holders of the Securities because the
Company is a reporting company under the 1934 Act and the Trust
has no independent operations, but exists for the sole purpose of
issuing the Trust Securities and holding Junior Subordinated
Debentures as trust assets. The Trust intends not to file
separate reports under the 1934 Act but must apply for and be
granted relief by the Commission to avoid the requirement to file
such reports.
THE COMPANY
The Company was incorporated under the laws of the State of
Texas in 1942 and has perpetual existence under the provisions of
the Texas Business Corporation Act. The Company, a wholly owned
subsidiary of Texas Utilities Company (Texas Utilities), is an
integrated company focused on natural gas. Its major business
operations are natural gas pipeline, processing, marketing and
distribution. Through these business operations, the Company is
engaged in owning and operating interconnected natural gas
transmission lines, underground storage reservoirs, compressor
stations and related properties in Texas; gathering and
processing natural gas to remove impurities and extract liquid
hydrocarbons for sale, and the wholesale and retail marketing of
natural gas in several areas of the United States, and owning and
operating approximately 550 local gas utility distribution
systems in Texas. The principal executive offices of the Company
are located at 1601 Bryan Street, Dallas, Texas 75201; the
telephone number is (214) 812-4600.
On August 5, 1997 (Merger Date), Texas Utilities became
the holding company for both the Company and Texas Energy
Industries, Inc. (TEI). Immediately prior to the transaction
(Merger), the Company's ownership interests in Enserch Exploration,
Inc. and Lone Star Energy Plant Operations, Inc. (together,
the Unacquired Business) were distributed to the holders of the
Company's common stock. Pursuant to the Merger, Lone Star Gas
Company and Lone Star Pipeline Company, the local distribution and
pipeline divisions of the Company, and other businesses, excluding
the Unacquired Businesses, were acquired by Texas Utilities.
TEI is a holding company formerly known as Texas Utilities
Company. The principal subsidiary of TEI is Texas Utilities
Electric Company (TU Electric), which is an electric utility
engaged in the generation, purchase, transmission, distribution
and sale of electric energy wholly within the State of Texas.
The other electric utility subsidiaries of TEI are Southwestern
Electric Service Company, which is engaged in the purchase,
transmission, distribution and sale of electric energy in ten
counties in the eastern and central parts of Texas with a
population estimated at 126,900, and Texas Utilities Australia
Pty. Ltd., owner of Eastern Energy Limited, which is engaged
in the purchase, distribution, marketing and sale of electric
energy to approximately 481,000 customers in the State of
Victoria, Australia. TEI also has three other subsidiaries
which perform specialized functions within the Texas Utilities
system: Texas Utilities Fuel Company owns a natural gas pipeline
system, acquires, stores and delivers fuel gas and provides other
fuel services at cost for the generation of electric energy by
TU Electric; Texas Utilities Mining Company owns, leases and
operates fuel production facilities for the surface mining and
recovery of lignite at cost for the generation of electric energy
by TU Electric; and Texas Utilities Services Inc. provides
financial, accounting, information technology, environmental
services, customer services, personnel, procurement and other
administrative services at cost. In addition, in November 1997,
Texas Utilities acquired Lufkin-Conroe Communications Co. (LCC).
LCC offers long-distance, cellular, internet and other services
and provides local telephone services in Southeast Texas.
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THE TRUST
The Trust is a statutory business trust created under
Delaware law pursuant to (i) a trust agreement executed by the
Company, as depositor for the Trust, The Bank of New York as the
Property Trustee (Property Trustee) and The Bank of New York
(Delaware) as the Delaware Trustee (Delaware Trustee) and a
certain individual who is an employee of the Company or one of
its affiliates as Administrative Trustee (such person and all
other such persons so appointed with respect to the Trust,
hereinafter the Administrative Trustees) and (ii) the filing of a
certificate of trust, with respect to the Trust, with the
Delaware Secretary of State. The trust agreement will be amended
and restated in its entirety (as so amended and restated, the
Trust Agreement) substantially in the form filed as an exhibit to
the Registration Statement of which this Prospectus forms a part.
The Trust Agreement will be qualified as an indenture under the
Trust Indenture Act of 1939, as amended (Trust Indenture Act).
The Trust exists for the exclusive purposes of (i) issuing Trust
Securities, (ii) holding the Junior Subordinated Debentures as
trust assets and (iii) engaging only in other activities
necessary or incidental thereto. All of the Common Trust
Securities will be owned by the Company. The Common Trust
Securities will rank pari passu, and payments will be made
thereon pro rata, with the Preferred Trust Securities, except
that upon the occurrence and continuance of a default under the
Trust Agreement, the rights of the holder of the Common Trust
Securities to payment in respect of Distributions and payments
upon liquidation, redemption and otherwise will be subordinated
to the rights of the holders of the Preferred Trust Securities.
The Company will acquire Common Trust Securities having an
aggregate liquidation preference amount equal to at least 3% of
the total capital of the Trust. The Trust has a term of
approximately 52 years, but may dissolve earlier as provided in
the Trust Agreement. The Trust's business and affairs will be
conducted by its Administrative Trustees. The office of the
Delaware Trustee in the State of Delaware is White Clay Center,
Route 273, Newark, Delaware 19711. The principal place of
business of the Trust is c/o ENSERCH Corporation, Energy Plaza,
1601 Bryan Street, Dallas, Texas 75201.
USE OF PROCEEDS
The Company and/or the Trust, as the case may be, are
offering hereby an aggregate of $275,000,000 of Securities. The
net proceeds to be received by the Trust from the sale of the
Preferred Trust Securities will be used to purchase Junior
Subordinated Debentures of the Company. The net proceeds to be
received by the Company from the sale of the Debt Securities and
the Junior Subordinated Debentures, together with funds from
operations, are expected to be used for the redemption or
repurchase of certain of its outstanding debt and preferred
stock, and may also be used to meet expenditures for its
construction program and for other corporate purposes, including
the repayment of short-term borrowings incurred for similar
purposes and outstanding at the time of any such sale. Proceeds
may be temporarily invested in short-term instruments pending
their application to the foregoing purposes.
Reference is made to the Prospectus Supplement applicable
to each issuance of Offered Debt Securities or Offered Trust
Securities, as the case may be.
HISTORICAL AND PRO FORMA RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
On the Merger Date, the Company became a wholly-owned
subsidiary of Texas Utilities. Immediately prior to the Merger
Date, the Company distributed to its common shareholders its
interests in the Unacquired Businesses. Texas Utilities
accounted for its acquisition of the Company as a purchase. As a
result, the Company has made certain purchase accounting
adjustments which are reflected in ratios for periods subsequent
to the Merger Date. Historical ratios for periods ending prior
to the Merger Date were prepared using the Company's historical
basis of accounting. Amounts for the period from January 1, 1997
through the Merger Date have been restated to reflect the
Unacquired Businesses as discontinued operations.
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Adjusted ratios are based on unaudited "pro forma"
financial information, which is included in the Current Report on
Form 8-K of the Company dated January 6, 1998 which is
incorporated herein by reference. The "pro forma" financial
information gives effect to (i) the distribution by the Company
of its interests in the Unacquired Businesses and (ii) the
purchase accounting adjustments as a result of the acquisition of
the Company by Texas Utilities, all on a pro forma basis as if
the events had occurred at the beginning of each period
presented.
The ratio of earnings to fixed charges for each of the
years ended December 31, 1994, 1995 and 1996 was 1.09, 1.06 and
1.44. For each of the years ended December 31, 1992 and 1993,
the period from January 1, 1997 through the Merger Date and the
period from the Merger Date through September 30, 1997, fixed
charges exceeded earnings by $0.2 million, $8.3 million, $19.0
million and $19.8 million, respectively. The ratio of earnings
to fixed charges, as adjusted, for the year ended December 31,
1996 was 1.24. For the nine months ended September 30, 1997, as
adjusted, fixed charges exceeded earnings by $17.3 million.
The ratio of earnings to combined fixed charges and
preferred dividends for the year ended December 31, 1996 was
1.24. For each of the years ended December 31, 1992 through
1995, the period from January 1, 1997 through the Merger Date and
the period from the Merger Date through September 30, 1997,
combined fixed charges and preferred dividends exceeded earnings
by $13.2 million, $21.0 million, $3.7 million, $6.3 million,
$27.7 million and $22.5 million, respectively. The ratio of
earnings to fixed charges, as adjusted, for the year ended
December 31, 1996, was 1.01. For the nine months ended September
30, 1997, as adjusted, combined fixed charges and preferred
dividends exceeded earnings by 40.2 million.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued in one or more series
under an indenture or indentures (each an Indenture) between the
Company and The Bank of New York or other financial institutions
to be named, as Trustee (each an Indenture Trustee), a form of
which is filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. The following description of
the terms of the Debt Securities does not purport to be complete
and is qualified in its entirety by reference to (i) the
respective Indenture and (ii) one or more officer's certificates
establishing the Debt Securities to which a form of Debt Security
will be attached. Whenever particular provisions or defined
terms in an Indenture are referred to under this DESCRIPTION OF
DEBT SECURITIES, such provisions or defined terms are
incorporated by reference herein.
General. Each Indenture will provide for the issuance of
Debt Securities in an unlimited amount from time to time. All
Debt Securities will be unsecured obligations of the Company.
All Debt Securities issued under an Indenture will rank equally
and ratably with all other Debt Securities issued under such
Indenture. An Indenture will not limit other unsecured debt.
The Company's financial statements included in the Incorporated
Documents show the amount of such other debt at the date of such
statements. See the Prospectus Supplement applicable to each
series of Offered Debt Securities.
The applicable Prospectus Supplement or Prospectus
Supplements will describe the following terms of the Debt
Securities: (1) the title of the Debt Securities; (2) any limit
upon the aggregate principal amount of the Debt Securities; (3)
the date or dates on which the principal of the Debt Securities
is payable or the method of determination thereof; (4) the rate
or rates, if any, or the method by which such rate will be
determined, at which the Debt Securities will bear interest, if
any, the date or dates from which any such interest will accrue,
the Interest Payment Dates on which any such interest will be
payable and the Regular Record Date for any interest payable on
any Interest Payment Date and the Person or Persons to whom
interest on such Debt Securities will be payable on any Interest
Payment Date, if other than the Persons in whose names such Debt
Securities are registered at the close of business on the Regular
Record Date for such interest; (5) the place or places where,
subject to the terms of the respective Indenture as described
below under "Payment and Paying Agents," the principal of and
premium, if any, and interest on the Debt Securities will be
payable and where, subject to the terms of such Indenture as
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described below under "Registration and Transfer," the Debt
Securities may be presented for registration of transfer or
exchange and the place or places where notices and demands to or
upon the Company in respect of the Debt Securities and such
Indenture may be served; the Security Registrar for such Debt
Securities; and, if such is the case, that the principal of such
Debt Securities will be payable without presentment or surrender
thereof; (6) the period or periods within, or date or dates on,
which, the price or prices at which and the terms and conditions
upon which Debt Securities may be redeemed, in whole or in part,
at the option of the Company; (7) the obligation or obligations,
if any, of the Company to redeem or purchase any of the Debt
Securities pursuant to any sinking fund or other mandatory
redemption provisions or at the option of the Holder thereof, and
the period or periods within which, or the date or dates on
which, the price or prices at which and the terms and conditions
upon which the Debt Securities will be redeemed or purchased, in
whole or in part, pursuant to such obligation, and applicable
exceptions to the requirements of a notice of redemption in the
case of mandatory redemption or redemption at the option of the
Holder; (8) the denominations in which any Debt Securities will
be issuable, if other than denominations of $1,000 and any
integral multiple thereof; (9) the currency or currencies,
including composite currencies in which the principal of or any
premium or interest on the Debt Securities will be payable (if
other than in Dollars); (10) if the principal of or any premium
or interest on the Debt Securities is to be payable, at the
election of the Company or the Holder thereof, in a coin or
currency other than that in which the Debt Securities are stated
to be payable, the period or periods within which and the terms
and conditions upon which, such election is to be made; (11) if
the principal of or premium or interest on the Debt Securities is
to be payable, or is to be payable at the election of the Company
or a Holder thereof, in securities or other property, the type
and amount of such securities or other property, or the method or
other means by which such amount will be determined, and the
period or periods within which, and the terms and conditions upon
which, any such election may be made; (12) if the amount payable
in respect of principal of or any premium or interest on the Debt
Securities may be determined with reference to an index or other
fact or event ascertainable outside of the respective Indenture,
the manner in which such amounts will be determined; (13) if
other than the principal amount thereof, the portion of the
principal amount of the Debt Securities which will be payable
upon declaration of acceleration of the Maturity thereof; (14)
any Events of Default, in addition to those specified in the
respective Indenture, with respect to the Debt Securities and any
covenants of the Company for the benefit of the Holders of the
Debt Securities, in addition to those specified in such
Indenture; (15) the terms, if any, pursuant to which the Debt
Securities may be converted into or exchanged for shares of
capital stock or other securities of the Company or any other
Person; (16) the obligations or instruments, if any, which will
be considered to be Eligible Obligations in respect of such Debt
Securities denominated in a currency other than Dollars or in a
composite currency, and any additional or alternative provisions
for the reinstatement of the Company's indebtedness in respect of
such Debt Securities after the satisfaction and discharge
thereof; (17) if the Debt Securities are to be issued in global
form, (i) any limitations on the rights of the Holder or Holders
of such Debt Securities to transfer or exchange the same or to
obtain the registration of transfer thereof, (ii) any limitations
on the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of temporary
form and (iii) any and all other matters incidental to such Debt
Securities; (18) if the Debt Securities are to be issuable as
bearer securities any and all matters incidental thereto; (19) to
the extent not addressed in item (17) above, any limitations on
the rights of the Holders of the Debt Securities to transfer or
exchange the Debt Securities or to obtain the registration of
transfer thereof, and if a service charge will be made for the
registration of transfer or exchange of the Debt Securities, the
amount or terms thereof; (20) any exceptions to the provisions
governing payments due on legal holidays or any variations in the
definition of Business Day with respect to such Debt Securities;
and (21) any other terms of the Debt Securities, not inconsistent
with the provisions of the respective Indenture (Indenture,
Section 301).
Debt Securities may be sold at a discount below their
principal amount. Certain special United States federal income
tax considerations, if any, applicable to Debt Securities sold at
an original issue discount may be described in the applicable
Prospectus Supplement. In addition, certain special United States
federal income tax or other considerations, if any, applicable to
any Debt Securities which are denominated in a currency or
currency unit other than Dollars may be described in the
applicable Prospectus Supplement.
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Except as may otherwise be described in the applicable
Prospectus Supplement, the covenants contained in an Indenture
will not afford Holders of Debt Securities protection in the
event of a highly-leveraged transaction involving the Company.
Payment and Paying Agents. Except as may be provided in the
applicable Prospectus Supplement, interest, if any, on each Debt
Security payable on each Interest Payment Date will be paid to
the Person in whose name such Debt Security is registered as of
the close of business on the Regular Record Date relating to such
Interest Payment Date; provided, however, that interest payable
at maturity (whether at stated maturity, upon redemption or
otherwise, herein a Maturity) will be paid to the Person to whom
principal is paid. However, if there has been a default in the
payment of interest on any Debt Security, such defaulted interest
may be payable to the Holder of such Debt Security as of the
close of business on a date selected by the respective Indenture
Trustee which is not more than 15 days and not less than 10 days
prior to the date proposed by the Company for payment on such
defaulted interest or in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Debt Security may be listed, if such Indenture Trustee deems such
manner of payment practicable (Indenture, Section 307).
Unless otherwise specified in the applicable Prospectus
Supplement, the principal of and premium, if any, and interest
on, the Debt Securities at Maturity will be payable upon
presentation of the Debt Securities at the corporate trust office
of The Bank of New York, in The City of New York, as Paying Agent
for the Company. The Company may change the Place of Payment on
the Debt Securities, may appoint one or more additional Paying
Agents (including the Company) and may remove any Paying Agent,
all at its discretion (Indenture, Section 602).
Registration and Transfer. Unless otherwise specified in
the applicable Prospectus Supplement, the transfer of Debt
Securities may be registered, and Debt Securities may be
exchanged for other Debt Securities of the same series or
tranche, of authorized denominations and of like tenor and
aggregate principal amount, at the corporate trust office of The
Bank of New York in The City of New York, as Security Registrar
for the Debt Securities. The Company may change the place for
registration of transfer and exchange of the Debt Securities and
may designate one or more additional places for such registration
and exchange, all at its discretion. Except as otherwise provided
in the applicable Prospectus Supplement, no service charge will
be made for any transfer or exchange of the Debt Securities, but
the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of the
Debt Securities. The Company will not be required to execute or
to provide for the registration of transfer of, or the exchange
of, (a) any Debt Security during a period of 15 days prior to
giving any notice of redemption or (b) any Debt Security selected
for redemption in whole or in part, except the unredeemed portion
of any Debt Security being redeemed in part (Indenture, Section
305).
Defeasance. The principal amount of any series of Debt
Securities issued under an Indenture will be deemed to have been
paid for purposes of such Indenture and the entire indebtedness
of the Company in respect thereof will be deemed to have been
satisfied and discharged if there shall have been irrevocably
deposited with the respective Indenture Trustee or any paying
agent, in trust: (a) money in an amount which will be
sufficient, or (b) in the case of a deposit made prior to the
maturity of the Debt Securities, Eligible Obligations (as defined
below), the principal of and the interest on which when due,
without any regard to reinvestment thereof, will provide moneys
which, together with the money, if any, deposited with or held by
such Indenture Trustee, will be sufficient, or (c) a combination
of (a) and (b) which will be sufficient, to pay when due the
principal of and premium, if any, and interest, if any, due and
to become due on the Debt Securities of such series that are
Outstanding. For this purpose, Eligible Obligations include
direct obligations of, or obligations unconditionally guaranteed
by, the United States of America entitled to the benefit of the
full faith and credit thereof and certificates, depositary
receipts or other instruments which evidence a direct ownership
interest in such obligations or in any specific interest or
principal payments due in respect thereof and which do not
contain provisions permitting the redemption or other prepayment
thereof at the option of the issuer thereof (Indenture, Section
701).
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Consolidation, Merger, and Sale of Assets. Under the terms
of an Indenture, the Company may not consolidate with or merge
into any other entity or convey, transfer or lease its properties
and assets substantially as an entirety to any entity, unless
(i) the entity formed by such consolidation or into which the
Company is merged or the entity which acquires by conveyance or
transfer, or which leases, the property and assets of the Company
substantially as an entirety shall be a entity organized and
validly existing under the laws of any domestic jurisdiction and
such entity expressly assumes the Company's obligations on all
Debt Securities and under such Indenture, (ii) immediately after
giving effect to the transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing, and
(iii) the Company shall have delivered to the respective
Indenture Trustee an Officer's Certificate and an Opinion of
Counsel as provided in such Indenture (Indenture, Section 1101).
The terms of an Indenture will not restrict the Company in a
merger in which the Company is the surviving entity.
Events of Default. Each of the following will constitute an
Event of Default under the Indenture with respect to the Debt
Securities of any series: (a) failure to pay any interest on the
Debt Securities of such series within 30 days after the same
becomes due and payable; (b) failure to pay principal or premium,
if any, on the Debt Securities of such series when due and
payable; (c) failure to perform, or breach of, any other covenant
or warranty of the Company in such Indenture (other than a
covenant or warranty of the Company in such Indenture solely for
the benefit of one or more series of Debt Securities other than
such series) for 90 days after written notice to the Company by
the respective Indenture Trustee, or to the Company and such
Indenture Trustee by the Holders of at least 33% in principal
amount of the Debt Securities of such series Outstanding under
such Indenture as provided in such Indenture; (d) the entry by a
court having jurisdiction in the premises of (1) a decree or
order for relief in respect of the Company in an involuntary case
or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (2) a decree
or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition by one or more Persons
other than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under
any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and any such decree or order for relief or any such
other decree or order shall have remained unstayed and in effect
for a period of 90 consecutive days; and (e) the commencement by
the Company of a voluntary case or proceeding under any
applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in
respect of the Company in a case or other similar proceeding or
to the commencement of any bankruptcy or insolvency case or
proceeding against it under any applicable federal or state law
or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state
law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official
of the Company 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, or the authorization of such action
by the Board of Directors (Indenture, Section 801).
An Event of Default with respect to the Debt Securities of a
particular series may not necessarily constitute an Event of
Default with respect to Debt Securities of any other series
issued under the same Indenture or Debt Securities issued under
any other Indenture.
Remedies. If an Event of Default due to the default in
payment of principal of or interest on any series of Debt
Securities or due to the default in the performance or breach of
any other covenant or warranty of the Company applicable to the
Debt Securities of such series but not applicable to all series
of Debt Securities issued under the same Indenture occurs and is
continuing, then either the respective Indenture Trustee or the
Holders of not less than 33% in principal amount of the
outstanding Debt Securities of such series may declare the
principal of all of the Debt Securities of such series and
interest accrued thereon to be due and payable immediately. If
9
<PAGE>
an Event of Default due to the default in the performance of any
other covenants or agreements in an Indenture applicable to all
Outstanding Debt Securities under such Indenture or due to
certain events of bankruptcy, insolvency or reorganization of the
Company has occurred and is continuing, either the respective
Indenture Trustee or the Holders of not less than 33% in
principal amount of all such Outstanding Debt Securities,
considered as one class, and not the Holders of the Debt
Securities of any one of such series, may make such declaration
of acceleration.
At any time after the declaration of acceleration with
respect to the Debt Securities of any series has been made and
before a judgment or decree for payment of the money due has been
obtained, the Event or Events of Default giving rise to such
declaration of acceleration will, without further act, be deemed
to have been waived, and such declaration and its consequences
will, without further act, be deemed to have been rescinded and
annulled, if:
(a) the Company has paid or deposited with the respective
Indenture Trustee a sum sufficient to pay
(1) all overdue interest on all Debt Securities of
such series;
(2) the principal of and premium, if any, on any Debt
Securities of such series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Debt Securities;
(3) interest upon overdue interest at the rate or
rates prescribed therefor in such Debt Securities, to the
extent that payment of such interest is lawful; and
(4) all amounts due to such Indenture Trustee under
the respective Indenture; and
(b) any other Event or Events of Default with respect to
Debt Securities of such series, other than the nonpayment of the
principal of the Debt Securities of such series which has become
due solely by such declaration of acceleration, have been cured
or waived as provided in such Indenture (Indenture, Section 802).
There is no automatic acceleration, even in the event of
bankruptcy, insolvency or reorganization of the Company.
Subject to the provisions of an Indenture relating to the
duties of the Indenture Trustee in case an Event of Default shall
occur and be continuing, the respective Indenture Trustee will be
under no obligation to exercise any of its rights or powers under
such Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to such Indenture Trustee
reasonable security or indemnity (Indenture, Section 903). If an
Event of Default has occurred and is continuing in respect of a
series of Debt Securities, subject to such provisions for the
indemnification of such Indenture Trustee, the Holders of a
majority in principal amount of the Outstanding Debt Securities
of such series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
such Indenture Trustee, or exercising any trust or power
conferred on such Indenture Trustee, with respect to the Debt
Securities of such series; provided, however, that if an Event of
Default occurs and is continuing with respect to more than one
series of Debt Securities under an Indenture, the Holders of a
majority in aggregate principal amount of the Outstanding Debt
Securities of all such series, considered as one class, will have
the right to make such direction, and not the Holders of the Debt
Securities of any one of such series; and provided, further, that
such direction will not be in conflict with any rule of law or
with such Indenture (Indenture, Section 812).
No Holder of Debt Securities of any series will have any
right to institute any proceeding with respect to the respective
Indenture, or for the appointment of a receiver or a trustee, or
for any other remedy thereunder, unless (i) such Holder has
previously given to the respective Indenture Trustee written
notice of a continuing Event of Default with respect to the Debt
Securities of such series, (ii) the Holders of not less than a
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<PAGE>
majority in aggregate principal amount of the Outstanding Debt
Securities of all series under such Indenture in respect of which
an Event of Default shall have occurred and be continuing,
considered as one class, have made written request to such
Indenture Trustee, and such Holder or Holders have offered
reasonable indemnity to such Indenture Trustee to institute such
proceeding in respect of such Event of Default in its own name as
trustee and (iii) such Indenture Trustee has failed to institute
any proceeding, and has not received from the Holders of a
majority in aggregate principal amount of the Outstanding Debt
Securities of such series a direction inconsistent with such
request, within 60 days after such notice, request and offer
(Indenture, Section 807). However, such limitations do not apply
to a suit instituted by a Holder of a Debt Security for the
enforcement of payment of the principal of or any premium or
interest on such Debt Security on or after the applicable due
date specified in such Debt Security (Indenture, Section 808).
The Company will be required to furnish to each Indenture
Trustee annually a statement by an appropriate officer as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under the respective Indenture, such
compliance to be determined without regard to any period of grace
or requirement of notice under such Indenture (Indenture, Section
606).
Modification and Waiver. Without the consent of any Holder
of Debt Securities, the Company and the Indenture Trustee under
an Indenture may enter into one or more supplemental indentures
for any of the following purposes: (a) to evidence the assumption
by any permitted successor to the Company of the covenants of the
Company in the such Indenture and in any of the Debt Securities
Outstanding under such Indenture; or (b) to add one or more
covenants of the Company or other provisions for the benefit of
all Holders or for the benefit of the Holders of, or to remain in
effect only so long as there shall be Outstanding, Debt
Securities of one or more specified series, or one or more
specified Tranches thereof, or to surrender any right or power
conferred upon the Company by such Indenture; or (c) to add any
additional Events of Default with respect to Outstanding Debt
Securities; or (d) to change or eliminate any provision of such
Indenture or to add any new provision to such Indenture, provided
that if such change, elimination or addition will adversely
affect the interests of the Holders of Debt Securities of any
series or Tranche in any material respect, such change,
elimination or addition will become effective with respect to
such series or Tranche only (1) when the consent of the Holders
of Debt Securities of such series or Tranche has been obtained in
accordance with such Indenture, or (2) when no Debt Securities of
such series or Tranche remain Outstanding under such Indenture;
or (e) to provide collateral security for all but not part of the
Debt Securities issued under such Indenture; or (f) to establish
the form or terms of Debt Securities of any other series or
Tranche as permitted by such Indenture; or (g) to provide for the
authentication and delivery of bearer securities and coupons
appertaining thereto representing interest, if any, thereon and
for the procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the solicitation of
the vote or consent of, the Holders thereof, and for any and all
other matters incidental thereto; or (h) to evidence and provide
for the acceptance of appointment of a successor Indenture
Trustee or co-trustee with respect to the Debt Securities of one
or more series and to add to or change any of the provisions of
such Indenture as shall be necessary to provide for or to
facilitate the administration of the trusts under such Indenture
by more than one trustee; or (i) to provide for the procedures
required to permit the utilization of a noncertificated system of
registration for the Debt Securities of all or any series or
Tranche; or (j) to change any place where (1) the principal of
and premium, if any, and interest, if any, on all or any series
or Tranche of Debt Securities shall be payable, (2) all or any
series or Tranche of Debt Securities may be surrendered for
registration of transfer or exchange and (3) notices and demands
to or upon the Company in respect of Debt Securities and such
Indenture may be served; or (k) to cure any ambiguity or
inconsistency or to add or change any other provisions with
respect to matters and questions arising under an Indenture,
provided such changes or additions shall not adversely affect the
interests of the Holders of Debt Securities of any series or
Tranche Outstanding under such Indenture in any material respect
(Indenture, Section 1201).
The Holders of a majority in aggregate principal amount of
the Debt Securities of all series then Outstanding under an
Indenture may waive compliance by the Company with certain
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<PAGE>
restrictive provisions of such Indenture (Indenture, Section
607). The Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of any series may waive
any past default under an Indenture with respect to such series,
except a default in the payment of principal, premium, or
interest and certain covenants and provisions of such Indenture
that cannot be modified or be amended without the consent of the
Holder of each Outstanding Debt Security of such series affected
(Indenture, Section 813).
Without limiting the generality of the foregoing, if the
Trust Indenture Act is amended after the date of an Indenture in
such a way as to require changes to such Indenture or the
incorporation therein of additional provisions or so as to permit
changes to, or the elimination of, provisions which, at the date
of such Indenture or at any time thereafter, were required by the
Trust Indenture Act to be contained in such Indenture, such
Indenture will be deemed to have been amended so as to conform to
such amendment of the Trust Indenture Act or to effect such
changes, additions or elimination, and the Company and the
Indenture Trustee may, without the consent of any Holders, enter
into one or more supplemental indentures to evidence or effect
such amendment (Indenture, Section 1201).
Except as provided above, the consent of the Holders of a
majority in aggregate principal amount of the Debt Securities of
all series then Outstanding under an Indenture, considered as one
class, is required for the purpose of adding any provisions to,
or changing in any manner, or eliminating any of the provisions
of, such Indenture or modifying in any manner the rights of the
Holders of such Debt Securities under such Indenture pursuant to
one or more supplemental indentures; provided, however, that if
less than all of the series of Debt Securities Outstanding under
an Indenture are directly affected by a proposed supplemental
indenture, then the consent only of the Holders of a majority in
aggregate principal amount of Outstanding Debt Securities of all
series under such Indenture so directly affected, considered as
one class, shall be required; and provided, further, that if the
Debt Securities of any series shall have been issued in more than
one Tranche and if the proposed supplemental indenture shall
directly affect the rights of the Holders of Debt Securities of
one or more, but less than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of all Tranches of such
series so directly affected, considered as one class, will be
required; and provided further, that no such amendment or
modification may (a) change the Stated Maturity of the principal
of, or any installment of principal of or interest on, any Debt
Security, or reduce the principal amount thereof or the rate of
interest thereon (or the amount of any installment of interest
thereon) or change the method of calculating such rate or reduce
any premium payable upon the redemption thereof, or change the
coin or currency (or other property) in which any Debt Security
or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment
on or after the Stated Maturity of any Debt Security (or, in the
case of redemption, on or after the redemption date) without, in
any such case, the consent of the Holder of such Debt Security,
(b) reduce the percentage in principal amount of the Outstanding
Debt Securities of any series, or any Tranche thereof, the
consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with any provision of such
Indenture or any default thereunder and its consequences, or
reduce the requirements for quorum or voting, without, in any
such case, the consent of the Holder of each outstanding Debt
Security of such series or Tranche, or (c) modify certain of the
provisions of such Indenture relating to supplemental indentures,
waivers of certain covenants and waivers of past defaults with
respect to the Debt Securities of any series or Tranche, without
the consent of the Holder of each Outstanding Debt Security under
such Indenture affected thereby. A supplemental indenture which
changes or eliminates any covenant or other provision of an
Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities or
one or more Tranches thereof, or modifies the rights of the
Holders of Debt Securities of such series with respect to such
covenant or other provision, will be deemed not to affect the
rights under such Indenture of the Holders of the Debt Securities
of any other series or Tranche (Indenture, Section 1202).
Each Indenture provides that in determining whether the
Holders of the requisite principal amount of the Outstanding Debt
Securities have given any request, demand, authorization,
direction, notice, consent or waiver under such Indenture, or
whether a quorum is present at the meeting of the Holders of Debt
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Securities, Debt Securities owned by the Company or any other
obligor upon the Debt Securities or any affiliate of the Company
or of such other obligor (unless the Company, such affiliate or
such obligor owns all Debt Securities Outstanding under such
Indenture, determined without regard to this provision) shall be
disregarded and deemed not to be Outstanding.
If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, election,
waiver or other Act, the Company may, at its option, fix in
advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice,
consent, waiver or other such Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of the
Outstanding Debt Securities have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Debt Securities shall be computed as of the record
date. Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind
every future Holder of the same Debt Security and the Holder of
every Debt 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 an Indenture
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Debt Security
(Indenture, Section 104).
Resignation of an Indenture Trustee. An Indenture Trustee
may resign at any time by giving written notice thereof to the
Company or may be removed at any time with respect to the
respective Indenture by Act of the Holders of a majority in
principal amount of all series of Debt Securities then
Outstanding under such Indenture delivered to such Indenture
Trustee and the Company. No resignation or removal of an
Indenture Trustee and no appointment of a successor trustee will
become effective until the acceptance of appointment by a
successor trustee in accordance with the requirements of the
respective Indenture. So long as no Event of Default or event
which, after notice or lapse of time, or both, would become an
Event of Default has occurred and is continuing and except with
respect to an Indenture Trustee appointed by Act of the Holders,
if the Company has delivered to the Indenture Trustee a
resolution of its Board of Directors appointing a successor
trustee and such successor has accepted such appointment in
accordance with the terms of the respective Indenture, such
Indenture Trustee will be deemed to have resigned and the
successor will be deemed to have been appointed as trustee in
accordance with such Indenture (Indenture, Section 910).
Notices. Notices to Holders of Debt Securities will be
given by mail to the addresses of such Holders as they may appear
in the security register therefor (Indenture, Section 106).
Title. The Company, the respective Indenture Trustee, and
any agent of the Company or such Indenture Trustee, may treat the
Person in whose name Debt Securities are registered as the
absolute owner thereof (whether or not such Debt Securities may
be overdue) for the purpose of making payments and for all other
purposes irrespective of notice to the contrary (Indenture,
Section 308).
Governing Law. Each Indenture and the Debt Securities will
be governed by, and construed in accordance with, the laws of the
State of New York (Indenture, Section 112).
Regarding the Indenture Trustee. The Indenture Trustee
under the first Indenture will be The Bank of New York. In
addition to acting as Indenture Trustee, The Bank of New York
acts, and may act, as trustee under various indentures and trusts
of the Company and its affiliates including, but not limited to,
the Trust Agreement, Subordinated Indenture and Guarantee, each
as described herein. The Company and its affiliates also
maintain various banking and trust relationships with The Bank of
New York.
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DESCRIPTION OF THE PREFERRED TRUST SECURITIES
Pursuant to the terms of the Trust Agreement for the Trust,
the Administrative Trustees on behalf of the Trust will issue
Preferred Trust Securities and Common Trust Securities. The
Preferred Trust Securities will represent preferred undivided
beneficial interests in the assets of the Trust and will entitle
the holders thereof to a preference over the Common Trust
Securities of the Trust in certain circumstances with respect to
distributions and amounts payable on redemption or liquidation,
as well as other benefits as described in the Trust Agreement.
The Trust Agreement will be qualified as an indenture under the
Trust Indenture Act, and a form of the Trust Agreement has been
filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. The following summary of certain
provisions of the Trust Agreement does not purport to be complete
and is subject to, and is qualified in its entirety by reference
to, the provisions of the Trust Agreement, including the
definitions therein of certain terms, and by reference to the
Trust Indenture Act. Wherever particular sections or defined
terms of the Trust Agreement are referred to, such sections or
defined terms are incorporated herein by reference.
General. The terms of the Common Trust Securities issued by
the Trust will be substantially identical to the terms of the
Preferred Trust Securities issued by the Trust, and the Common
Trust Securities will rank pari passu, and payments will be made
thereon pro rata, with the Preferred Trust Securities except
that, upon an event of default under the Trust Agreement, the
rights of the Holder of the Common Trust Securities to payment in
respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of
the Holders of the Preferred Trust Securities. Except in certain
limited circumstances, the Common Trust Securities will also
carry the right to vote to appoint, remove or replace any of the
Trustees of the Trust. All of the Common Trust Securities of the
Trust initially will be owned by the Company. The Common Trust
Securities will not be transferable by the Company except in
connection with a consolidation, merger or transfer or lease of
assets that would be permitted under the Subordinated Indenture
(as defined herein). See DESCRIPTION OF JUNIOR SUBORDINATED
DEBENTURES -- "Consolidation, Merger, and Sale of Assets."
Junior Subordinated Debentures in an aggregate principal
amount equal to the aggregate liquidation amount of the Trust
Securities will be held by the Property Trustee in trust for the
benefit of the Holders of the Trust Securities. (Section 2.09).
The aggregate of the following rights and obligations with
respect to the Preferred Trust Securities constitutes a full and
unconditional guarantee by the Company of payments due on the
Preferred Trust Securities: the obligations of the Company under
the related Junior Subordinated Debentures to pay principal and
interest, the obligations of the Company under the Junior
Subordinated Debentures and pursuant to the Trust Agreement to
pay amounts equal to all expenses of the Trust, the obligations
of the Company under the Guarantee and the rights of the Holders
of Preferred Trust Securities to directly enforce the Company's
obligations with respect to the Junior Subordinated Debentures.
See DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES --
"Additional Interest" and DESCRIPTION OF THE GUARANTEE -- "Events
of Default."
Distributions. It is anticipated that the income of the
Trust available for Distribution to the Holders of the Trust
Securities will be limited to payments on the Junior Subordinated
Debentures which the Trust will purchase with the proceeds of the
Trust Securities. See DESCRIPTION OF THE JUNIOR SUBORDINATED
DEBENTURES. If the Company does not make interest payments on
the Junior Subordinated Debentures held by the Trust, the
Property Trustee will not have funds available to pay
Distributions on the Preferred Trust Securities. The payment of
Distributions (if and to the extent the Trust has sufficient
funds available for the payment of such Distributions) is
guaranteed on a limited basis by the Company as set forth herein
under DESCRIPTION OF THE GUARANTEE.
If so provided in the applicable Prospectus Supplement and
subject to the terms and conditions specified therein, the
Company has the right under the indenture (Subordinated
Indenture), between the Company and The Bank of New York, as
trustee (Debenture Trustee), pursuant to which the Company will
issue the Junior Subordinated Debentures to extend the interest
payment period from time to time on the Junior Subordinated
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Debentures for one or more periods (each an Extension Period),
with the consequence that Distributions on the Trust Securities
would be deferred (but would continue to accrue with interest
payable on unpaid Distributions at a specified rate) by the Trust
during any such Extension Period. In the event that the Company
exercises this right, during such period, or during any period in
which the Company is in default under the Guarantee or with
respect to payments on the Junior Subordinated Debentures, the
Company may not declare or pay any dividend or distribution on
(other than dividends paid in shares of Common Stock of the
Company), or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock, or make any
guarantee payments with respect to the foregoing or redeem any
indebtedness that is pari passu with the Junior Subordinated
Debentures. Any Extension Period with respect to payment of
interest on the Junior Subordinated Debentures, or any extended
interest payment period in respect of other securities issued
under the Subordinated Indenture (collectively with the Junior
Subordinated Debentures, the Subordinated Indenture Securities)
or on any similar securities will apply to all such securities
and will also apply to Distributions with respect to the Trust
Securities and all other securities with terms substantially the
same as the Trust Securities. Prior to the termination of any
such Extension Period, the Company may further extend the
interest payment period, provided that such Extension Period
together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the
maturity of the Junior Subordinated Debentures. Upon the
termination of any Extension Period and the payment of all
amounts then due, the Company may select a new extended interest
payment period, subject to the foregoing requirements. See
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES -- "Interest"
and "Option to Extend Interest Payment Period." The Holders of
Preferred Trust Securities do not have a right to appoint a
special representative in the event that the Company defers
interest on the Junior Subordinated Debentures.
Redemption of Trust Securities. Upon the repayment of the
Junior Subordinated Debentures, whether at maturity or upon
earlier redemption as provided in the Subordinated Indenture, the
proceeds from such repayment shall be applied by the Property
Trustee to redeem a Like Amount (as defined herein) of Trust
Securities, upon not less than 30 nor more than 60 days' notice,
at the Redemption Price plus accrued and unpaid Distributions.
See DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES --
"Optional Redemption."
Like Amount means (i) with respect to a redemption of Trust
Securities, an amount of Trust Securities having a liquidation
value equal to the principal amount of Junior Subordinated
Debentures to be contemporaneously redeemed in accordance with
the Subordinated Indenture, the proceeds of which are to be used
to pay the Redemption Price, plus accrued and unpaid
Distributions, of the Trust Securities and (ii) with respect to a
distribution of Junior Subordinated Debentures to Holders of
Trust Securities in connection with the bankruptcy, dissolution
or liquidation of the Trust, Junior Subordinated Debentures
having a principal amount equal to the liquidation value of the
Trust Securities of the Holders to which the Junior Subordinated
Debentures are distributed.
Redemption Procedures. Trust Securities redeemed on each
Redemption Date shall be redeemed at the Redemption Price plus
accrued and unpaid Distributions with the proceeds from the
contemporaneous redemption of Junior Subordinated Debentures.
Redemptions of the Trust Securities shall be made and the
Redemption Price plus accrued and unpaid Distributions shall be
deemed payable on each Redemption Date only to the extent that
the Trust has funds available for such payment (Section 4.02(c)).
See also "Subordination of Common Trust Securities."
If the Trust gives a notice of redemption in respect of
Preferred Trust Securities (which notice will be irrevocable),
then, on or before the Redemption Date, the Trust will
irrevocably deposit with the Paying Agent for the Preferred Trust
Securities funds sufficient to pay the applicable Redemption
Price plus accrued and unpaid Distributions and will give the
Paying Agent irrevocable instructions and authority to pay the
Redemption Price plus accrued and unpaid Distributions to the
Holders thereof upon surrender of their certificates evidencing
Preferred Trust Securities. 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 on the relevant record dates for
the related Distribution Dates. If notice of redemption shall
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have been given and funds deposited as required, then on the
Redemption Date, all rights of Holders of the Trust Securities so
called for redemption will cease, except the right of such
Holders to receive the Redemption Price plus accrued and unpaid
Distributions, but without interest thereon, and such Trust
Securities will cease to be outstanding. In the event that any
date fixed for redemption of Trust Securities is not a Business
Day, then payment of the amount payable on such date will 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 accrued and
unpaid Distributions in respect of Trust Securities called for
redemption is improperly withheld or refused and not paid either
by the Trust or by the Company pursuant to the Guarantee
described herein under DESCRIPTION OF THE GUARANTEE,
Distributions on the Trust Securities will continue to accrue at
the then applicable rate, from the original Redemption Date to
the date of payment, in which case the actual payment date will
be considered the date fixed for redemption for purposes of
calculating the Redemption Price plus accrued and unpaid
Distributions (Section 4.02(d)).
Subject to applicable law (including, without limitation,
United States federal securities law), the Company may at any
time and from time to time purchase outstanding Preferred Trust
Securities by tender, in the open market or by private agreement.
If less than all the Trust Securities are to be redeemed on
a Redemption Date, then the aggregate liquidation preference of
such securities to be redeemed shall be allocated on a pro rata
basis to the Common Trust Securities and the Preferred Trust
Securities. The particular Preferred Trust 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 Trust 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
redemption of Preferred Trust Securities in liquidation
preference amounts equal to the denominations in which they were
issued or integral multiples thereof. The Property Trustee shall
promptly notify the Security Registrar in writing of the
Preferred Trust Securities selected for redemption and, in the
case of any Preferred Trust Securities selected for partial
redemption, the liquidation preference amount thereof to be
redeemed. For all purposes of the Trust Agreement, unless the
context otherwise requires, all provisions relating to the
redemption of Preferred Trust Securities shall relate, in the
case of any Preferred Trust Securities redeemed or to be redeemed
only in part, to the portion of the liquidation preference amount
of Preferred Trust Securities that has been or is to be redeemed
(Section 4.02(f)).
Subordination of Common Trust Securities. Payment of
Distributions on, and the Redemption Price plus accrued and
unpaid distributions of, the Trust Securities, shall be made pro
rata based on the liquidation preference of the Trust Securities;
provided, however, that if on any Distribution Date or Redemption
Date an Event of Default (as described below, see "Events of
Default; Notice") under the Trust Agreement shall have occurred
and be continuing, no payment of any Distribution on, or
Redemption Price of, any Common Trust Security, and no other
payment on account of the redemption, liquidation or other
acquisition of Common Trust Securities, shall be made unless
payment in full in cash of all accumulated and unpaid
Distributions on all outstanding Preferred Trust 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 Trust 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 on, or Redemption Price of plus accumulated and
unpaid Distributions of, Preferred Trust Securities then due and
payable (Section 4.03(a)).
In the case of any Event of Default under the Trust
Agreement resulting from an Event of Default under the
Subordinated Indenture, the Holder of Common Trust Securities
will be deemed to have waived any such default under the Trust
Agreement until the effect of all such defaults with respect to
the Preferred Trust Securities has been cured, waived or
otherwise eliminated. Until any such default under the Trust
Agreement with respect to the Preferred Trust Securities has been
so cured, waived or otherwise eliminated, the Property Trustee
shall act solely on behalf of the Holders of the Preferred Trust
Securities and not the Holder of the Common Trust Securities, and
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only Holders of Preferred Trust Securities will have the right to
direct the Property Trustee to act on their behalf (Section
4.03(b)).
Liquidation Distribution upon Dissolution. Pursuant to the
Trust Agreement, the Trust shall dissolve and shall be liquidated
by the Property Trustee on the first to occur of: (i) the
expiration of the term of the Trust; (ii) the bankruptcy,
dissolution or liquidation of the Company; (iii) the redemption
of all of the Preferred Trust Securities and (iv) at any time, at
the election of the Company (Sections 9.01 and 9.02).
If an early dissolution occurs as described in clause (ii)
above, the Trust shall be liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be
appropriate by adequately providing for the satisfaction of
liabilities of creditors, if any, and by distributing to each
Holder of Preferred Trust Securities and Common Trust Securities
a Like Amount of Junior Subordinated Debentures, unless such
distribution is determined by the Property Trustee not to be
practical, in which event such Holders will be entitled to
receive, out of the assets of the Trust available for
distribution to Holders after adequate provision, as determined
by the Property Trustee, has been made for the satisfaction of
liabilities of creditors, if any, an amount equal to, in the case
of Holders of Preferred Trust Securities, the aggregate
liquidation preference of the Preferred Trust Securities plus
accrued and unpaid distributions thereon to the date of payment
(such amount being the Liquidation Distribution). If such
Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Trust Securities shall be paid on a
pro rata basis. The Company, as Holder of the Common Trust
Securities, will be entitled to receive a Liquidation
Distribution upon any such dissolution pro rata with the Holders
of the Preferred Trust Securities, except that if an Event of
Default has occurred and is continuing under the Trust Agreement,
the Preferred Trust Securities shall have a preference over the
Common Trust Securities (Sections 9.04(a) and 9.04(e)).
Events of Default; Notice. Any one of the following events
constitutes an Event of Default under the Trust Agreement
(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 an Event of Default as defined in
Section 801 of the Subordinated Indenture (see DESCRIPTION
OF THE JUNIOR SUBORDINATED DEBENTURES "Events 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 accrued 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 the Trust Agreement (other than a covenant or
warranty a default in the performance of which or the breach
of which 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 Preferred
Trust Securities having at least 10% of the total
liquidation preference of the Outstanding Preferred Trust
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 thereunder; or
(v) the occurrence of certain events of bankruptcy or
insolvency with respect to the Trust.
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Within ninety days after the occurrence of any default, the
Property Trustee shall transmit to the Holders of Trust
Securities and the Company notice of any such default actually
known to the Property Trustee, unless such default shall have
been cured or waived (Section 8.02).
A Holder of Preferred Trust Securities may directly
institute a proceeding for enforcement of payment to such Holder
directly of the principal of or interest on Junior Subordinated
Debentures having a principal amount equal to the aggregate
liquidation preference amount of the Preferred Trust Securities
of such Holder on or after the respective due dates specified in
the Junior Subordinated Debentures. The Holders of the Preferred
Trust Securities would not be able to exercise directly any other
remedies available to the holder of the Junior Subordinated
Debentures unless the Property Trustee fails to do so or the
Debenture Trustee, acting for the benefit of the Property
Trustee, fails to do so for 60 days after receipt of a written
request from the Property Trustee. See "Voting Rights" and
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES -- "Enforcement
of Certain Rights by Holders of Preferred Trust Securities"
(Section 6.01).
Unless an Event of Default shall have occurred and be
continuing, the Property Trustee may be removed at any time by
act of the Holder of the Common Trust Securities. If an Event of
Default has occurred and is continuing, the Property Trustee may
be removed at such time by act of the Holders of Preferred Trust
Securities having a majority of the liquidation preference of the
Preferred Trust Securities. No resignation or removal of the
Property Trustee and no appointment of a successor trustee shall
be effective until the acceptance of appointment by the successor
Property Trustee in accordance with the provisions of the Trust
Agreement. (Section 8.10).
If an Event of Default described in clause (i) above has not
occurred with respect to the Trust solely by reason of the
requirement that time lapse or notice be given, and is
continuing, the Preferred Trust Securities shall have a
preference over the Common Trust Securities upon dissolution of
the Trust as described above. See "Liquidation Distribution upon
Dissolution" (Section 9.04(a)).
Merger or Consolidation of the Property Trustee or the
Delaware Trustee. Any entity into which the Property Trustee or
the Delaware Trustee may be merged or with which it may be
consolidated, or any entity resulting from any merger, conversion
or consolidation to which the Property Trustee or the Delaware
Trustee shall be a party, or any entity succeeding to all or
substantially all the corporate trust business of the Property
Trustee or the Delaware Trustee, shall be the successor to the
Property Trustee or the Delaware Trustee under the Trust
Agreement, provided such entity shall be otherwise qualified and
eligible (Section 8.12).
Voting Rights. Except as described below and under
"Amendments to the Trust Agreement," and under DESCRIPTION OF THE
GUARANTEE -- "Amendments and Assignment" and as otherwise
required by law and the Trust Agreement, the Holders of the
Preferred Trust Securities will have no voting rights (Section
6.01(a)).
So long as any Junior Subordinated Debentures are held by
the Property Trustee, the Property Trustee 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 the
Junior Subordinated 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 Junior Subordinated Debentures shall be
due and payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Junior
Subordinated Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the
Holders of Preferred Trust Securities having at least 66 2/3% of
the aggregate liquidation preference amount of the Outstanding
Preferred Trust Securities; provided, however, that where a
consent under the Subordinated Indenture would require the
consent of each Holder of Junior Subordinated Debentures affected
thereby, no such consent shall be given by the Property Trustee
without the prior written consent of each Holder of Preferred
Trust Securities. The Property Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders
of the Preferred Trust Securities, except pursuant to a
subsequent vote of the Preferred Trust Securities. If the
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<PAGE>
Property Trustee fails to enforce its rights under the Junior
Subordinated Debentures or the Trust Agreement, a Holder of
Preferred Trust Securities may institute a legal proceeding
directly against the Company to enforce the Property Trustee's
rights under the Junior Subordinated Debentures or the Trust
Agreement to the fullest extent permitted by law, without first
instituting any legal proceeding against the Property Trustee or
any other Person. The Property Trustee shall notify all Holders
of the Preferred Trust Securities of any notice of default
received from the Debenture Trustee. In addition to obtaining
the foregoing approvals of the Holders of the Preferred Trust
Securities, prior to taking any of the foregoing actions, the
Property Trustee shall receive an Opinion of Counsel experienced
in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation for United
States federal income tax purposes on account of such action
(Section 6.01(a) and (b)).
Any required approval of Holders of Trust Securities may be
given at a meeting of Holders of Trust Securities convened for
such purpose or pursuant to written consent (Section 6.06). The
Administrative Trustees will cause a notice of any meeting at
which Holders of Preferred Trust Securities are entitled to vote,
or of any matter upon which action by written consent of such
Holders is to be taken, to be given to each Holder of Preferred
Trust Securities in the manner set forth in the Trust Agreement
(Section 6.02).
No vote or consent of the Holders of Preferred Trust
Securities will be required for the Trust to redeem and cancel
Preferred Trust Securities in accordance with the Trust Agreement
(Section 4.02).
Notwithstanding that Holders of Preferred Trust Securities
are entitled to vote or consent under any of the circumstances
described above, any of the Preferred Trust Securities that are
owned by the Company, any Trustee or any affiliate of the Company
or any Trustee, shall, for purposes of such vote or consent, be
treated as if they were not outstanding (Section 1.01).
Holders of the Preferred Trust Securities will have no
rights to appoint or remove the Administrative Trustees, who may
be appointed, removed or replaced solely by the Company as the
Holder of the Common Trust Securities (Section 8.10).
Amendments. The Trust Agreement may be amended from time to
time by the Trust (on approval of a majority of the
Administrative Trustees and the Company, without the consent of
any Holders of Trust Securities), (i) to cure any ambiguity,
correct or supplement any provision therein which may be
inconsistent with any other provision therein, or to make any
other provisions with respect to matters or questions arising
under the Trust Agreement or (ii) to modify, eliminate or add to
any provisions of the 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 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 (1940 Act); provided, however, that such
action shall not adversely affect in any material respect the
interests of any Holder of Trust Securities and, in the case of
clause (i), any such amendments of the Trust Agreement shall
become effective when notice thereof is given to the Holders of
Trust Securities (Section 6.01(c) and 10.03(a)).
Except as provided below, any provision of the Trust
Agreement may be amended by the Administrative Trustees and the
Company with (i) the consent of Holders of the Trust Securities
representing not less than a majority in liquidation preference
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 cause the Trust to be
classified for United States federal income tax purposes as an
association taxable as a corporation or affect the Trust's
exemption from status of an "investment company" under the 1940
Act (Section 10.03(b)).
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<PAGE>
Without the consent of each affected Holder of Trust
Securities, the Trust Agreement may not be amended to (i) change
the amount or timing of any Distribution with respect to the
Trust Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a
Holder of Trust Securities to institute suit for the enforcement
of any such payment on or after such date (Section 10.03(c)).
Co-trustees and Separate Trustee. Unless an Event of
Default under the Trust Agreement 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 (as defined
in the Trust Agreement) may at the time be located, the Holder of
the Common Trust Securities and the Property Trustee shall have
power to appoint, and upon the written request of the Property
Trustee, the Company, as 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 such capacity, any property, title,
right or power deemed necessary or desirable, subject to the
provisions of the Trust Agreement. If the Company, as 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 (Section 8.09).
Form, Exchange, and Transfer. At the option of the Holder,
subject to the terms of the Trust Agreement, Preferred Trust
Securities will be exchangeable for other Preferred Trust
Securities of the same series in any authorized denomination and
of like tenor and aggregate liquidation preference.
Subject to the terms of the Trust Agreement, Preferred Trust
Securities may be presented for exchange as provided above or for
registration of transfer (duly endorsed or accompanied by a duly
executed instrument of transfer) at the office of the Security
Registrar or at the office of any transfer agent designated by
the Company for such purpose. The Company or an Affiliate may be
designated the Security Registrar. No service charge will be
made for any registration of transfer or exchange of Preferred
Trust Securities, but payment may be required of a sum sufficient
to cover any tax or other governmental charge payable in
connection therewith. Such transfer or exchange will be effected
upon the Security Registrar or such transfer agent, as the case
may be, being satisfied with the documents of title and identity
of the person making the request. The Company may at any time
designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through
which any transfer agent acts, except that the Company will be
required to maintain a transfer agent in each place of payment
for the Preferred Trust Securities.
The Trust will not be required to (i) issue, register the
transfer of, or exchange any Preferred Trust 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 Trust 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 Trust Securities so
selected for redemption, in whole or in part, except the
unredeemed portion of any such Preferred Trust Securities being
redeemed in part (Section 5.04).
Registrar and Transfer Agent. Texas Utilities Services Inc.
will act as registrar and transfer agent for the Preferred Trust
Securities.
Registration of transfers of Preferred Trust Securities will
be effected without charge by or on behalf of the Trust, but upon
payment (with the giving of such indemnity as the Trust or the
Company may require) in respect of any tax or other governmental
charges which may be imposed in relation to it (Section 5.04).
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<PAGE>
Regarding the Property Trustee. In addition to acting as
the Property Trustee, The Bank of New York acts, and may act, as
trustee under various indentures and trusts of the Company and
its affiliates, including, but not limited to any Indenture, the
Subordinated Indenture and the Guarantee, each as described
herein. The Company and its affiliates also maintain various
banking and trust relationships with The Bank of New York.
Miscellaneous. The Delaware Trustee will act as the
resident trustee in the State of Delaware and will have no other
significant duties. The Property Trustee will hold the Junior
Subordinated Debentures on behalf of the Trust and will maintain
a payment account with respect to the Trust Securities, and will
also act as trustee under the Trust Agreement for the purposes of
the Trust Indenture Act. See "Events of Default; Notice." The
Administrative Trustees will administer the day to day operations
of the Trust. See "Voting Rights."
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 1940 Act or taxed as a
corporation for United States federal income tax purposes and so
that the Junior Subordinated Debentures will be treated as
indebtedness of the Company for United States federal income tax
purposes. In this connection, the Administrative Trustees are
authorized to take any action, not inconsistent with applicable
law, the certificate of trust or the Trust Agreement, that the
Administrative Trustees determine in their 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 Trust Securities (Section 2.07).
Holders of the Preferred Trust Securities have no preemptive
or similar rights (Section 5.13).
DESCRIPTION OF THE GUARANTEE
Set forth below is a summary of information concerning the
Guarantee that will be executed and delivered by the Company for
the benefit of the Holders from time to time of the Preferred
Trust Securities. The Guarantee will be qualified as an
indenture under the Trust Indenture Act. The Bank of New York
will act as Guarantee Trustee under the Guarantee for the
purposes of compliance with the Trust Indenture Act. The terms
of the Guarantee will be those set forth in the Guarantee and
those made part of the Guarantee by the Trust Indenture Act.
This summary does not purport to be complete and is subject in
all respects to the provisions of, and is qualified in its
entirety by reference to, the Guarantee, a form of which is filed
as an exhibit to the Registration Statement of which this
Prospectus forms a part, and the Trust Indenture Act. The
Guarantee Trustee will hold the Guarantee for the benefit of the
Holders of the Preferred Trust Securities.
General. The Company will fully and unconditionally agree,
to the extent set forth herein, to pay the Guarantee Payments (as
defined herein) in full to the Holders of the Preferred Trust
Securities (except to the extent paid by or on behalf of the
Trust), as and when due, regardless of any defense, right of
set-off or counterclaim that the Company may have or assert. The
following payments with respect to the Preferred Trust
Securities, to the extent not paid by or on behalf of the Trust
(Guarantee Payments), will be subject to the Guarantee (without
duplication): (i) any accrued and unpaid Distributions required
to be paid on the Preferred Trust Securities, to the extent the
Trust has funds available therefor, (ii) the Redemption Price,
plus all accrued and unpaid Distributions, with respect to any
Preferred Trust Securities called for redemption by the Trust, to
the extent the Trust has funds available therefor and (iii) upon
a voluntary or involuntary dissolution, winding-up or termination
of the Trust (other than in connection with the distribution of
Junior Subordinated Debentures to the Holders in exchange for
Preferred Trust Securities as provided in the Trust Agreement or
upon a redemption of all of the Preferred Trust Securities upon
maturity or redemption of the Junior Subordinated Debentures as
provided in the Trust Agreement), the lesser of (a) the aggregate
of the liquidation preference and all accrued and unpaid
Distributions on the Preferred Trust Securities to the date of
payment and (b) the amount of assets of the Trust remaining
available for distribution to Holders of Preferred Trust
Securities in liquidation of the Trust. The Company's obligation
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to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Company to the Holders of Preferred
Trust Securities or by causing the Trust to pay such amounts to
such Holders (Section 5.01).
The Guarantee will be a guarantee with respect to the
Preferred Trust Securities, but will not apply to (i) any payment
of Distributions if and to the extent that the Trust does not
have funds available to make such payments, or (ii) collection of
payment. If the Company does not make interest payments on the
Junior Subordinated Debentures held by the Trust, the Trust will
not have funds available to pay Distributions on the Preferred
Trust Securities. The Guarantee will rank subordinate and junior
in right of payment to all liabilities of the Company (except
those made pari passu by their terms). See "Status of the
Guarantee."
The Company will enter into agreements to provide funds to
the Trust as needed to pay obligations of the Trust to parties
other than Holders of Preferred Trust Securities (Expense
Agreement). The Junior Subordinated Debentures and the
Guarantee, together with the obligations of the Company with
respect to the Preferred Trust Securities under the Subordinated
Indenture, the Trust Agreement and the Expense Agreement,
constitute a full and unconditional guarantee of the Preferred
Trust Securities by the Company. No single document standing
alone or operating in conjunction with fewer than all of the
other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of
providing a full and unconditional guarantee by the Company of
the Preferred Trust Securities.
Amendments and Assignment. Except with respect to any
changes that do not materially adversely affect the rights of
Holders of Preferred Trust Securities (in which case no vote will
be required), the terms of the Guarantee may be changed only with
the prior approval of the Holders of Preferred Trust Securities
having at least 66 2/3% of the liquidation preference amount of
the outstanding Preferred Trust Securities (Section 8.02). All
guarantees and agreements contained in the Guarantee shall bind
the successors, assigns, receivers, trustees and representatives
of the Company and shall inure to the benefit of the Holders of
the Preferred Trust Securities then outstanding (Section 8.01).
Events of Default. An event of default under the Guarantee
will occur upon the failure of the Company to perform any of its
payment obligations thereunder (Section 1.01). The Holders of
Preferred Trust Securities having a majority of the liquidation
preference of the Preferred Trust Securities have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of
the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee (Section
5.04).
If the Guarantee Trustee fails to enforce a Guarantee, any
Holder of Preferred Trust Securities may enforce the Guarantee,
or institute a legal proceeding directly against the Company to
enforce the Guarantee Trustee's rights under the Guarantee
without first instituting a legal proceeding against the Trust,
the Guarantee Trustee or any other person or entity.
The Company will be required to provide annually to the
Guarantee Trustee a statement as to the performance by the
Company of certain of its obligations under the Guarantee and as
to any default in such performance.
The Company will also be required to file annually with the
Guarantee Trustee an officer's certificate as to the Company's
compliance with all conditions under the Guarantee (Section
2.05).
Regarding the Guarantee Trustee. The Guarantee Trustee,
prior to the occurrence of a default by the Company in
performance of the Guarantee, will undertake to perform only such
duties as are specifically set forth in the Guarantee and, after
default with respect to the Guarantee, must exercise the same
degree of care as a prudent individual would exercise in the
conduct of his or her own affairs (Section 3.01(b)). Subject to
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this provision, the Guarantee Trustee is under no obligation to
exercise any of the powers vested in it by the Guarantee at the
request of any Holder of Preferred Trust Securities unless it is
offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred thereby (Section 3.01(c)).
See DESCRIPTION OF THE TRUST SECURITIES - "Regarding the Property
Trustee."
Termination of the Guarantee. The Guarantee will terminate
and be of no further force and effect upon full payment of the
Redemption Price, plus accrued and unpaid Distributions, of all
Preferred Trust Securities, the distribution of Junior
Subordinated Debentures to Holders of the Preferred Trust
Securities in exchange for all of the Preferred Trust Securities
or full payment of the amounts payable upon liquidation of the
Trust. The Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of
Preferred Trust Securities must restore payment of any sums paid
under the Preferred Trust Securities or the Guarantee (Section
7.01).
Status of the Guarantee. The Guarantee will constitute an
unsecured obligation of the Company and will rank (i) subordinate
and junior in right of payment to all liabilities of the Company
(except liabilities that may be made pari passu by their terms),
(ii) pari passu with the most senior preferred or preference
stock now or hereafter issued by the Company and with any
guarantee now or hereafter entered into by the Company in respect
of any preferred or preference stock of any affiliate of the
Company and (iii) senior to the Company's common stock (Section
6.01). The Trust Agreement provides that each Holder of
Preferred Trust Securities by acceptance thereof agrees to the
subordination provisions and other terms of the Guarantee.
The Guarantee will constitute a guarantee of payment and not
of collection (i.e., the guaranteed party may institute a legal
proceeding directly against the Guarantor to enforce its rights
under the Guarantee without first instituting a legal proceeding
against any other person or entity) (Section 5.05).
Governing Law. The Guarantee will be governed by and
construed in accordance with the laws of the State of New York
(Section 8.06).
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
Set forth below is a description of the specific terms of
the Junior Subordinated Debentures which the Trust will hold as
trust assets. The following description does not purport to be
complete and is qualified in its entirety by reference to the
description in the Subordinated Indenture, a form of which is
filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. Whenever particular provisions or
defined terms in the Subordinated Indenture are referred to
herein, such provisions or defined terms are incorporated by
reference herein. Section references used herein are references
to provisions of the Subordinated Indenture unless otherwise
noted. The Subordinated Indenture provides for the issuance of
debentures (including the Junior Subordinated Debentures), notes
or other evidences of indebtedness by the Company in an unlimited
amount from time to time.
General. The Junior Subordinated Debentures will be limited
in aggregate principal amount to the sum of the aggregate
liquidation preference amount of the Preferred Trust Securities
and the consideration paid by the Company for the Common Trust
Securities. The Junior Subordinated Debentures are unsecured,
subordinated obligations of the Company which rank junior to all
of the Company's Senior Indebtedness (Section 1501). The amounts
payable as principal and interest on the Junior Subordinated
Debentures will be sufficient to provide for payment of
distributions payable on Preferred Trust Securities.
If Junior Subordinated Debentures are distributed to Holders
of Preferred Trust Securities in a dissolution of the Trust, such
Junior Subordinated Debentures will be issued in fully registered
certificated form in the denominations and integral multiples
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thereof in which the Preferred Trust Securities have been issued
and may be transferred or exchanged at the offices described
below (Section 201).
Payments of principal and interest on Junior Subordinated
Debentures will be payable, the transfer of Junior Subordinated
Debenture will be registrable, and Junior Subordinated Debentures
will be exchangeable for Junior Subordinated Debentures of other
denominations of a like aggregate principal amount, at the
corporate trust office of the Debenture Trustee in The City of
New York (Section 602); provided that payment of interest may be
made at the option of the Company by check mailed to the address
of the persons entitled thereto and that the payment in full of
principal with respect to any Junior Subordinated Debenture will
be made only upon surrender of the Junior Subordinated Debenture
to the Debenture Trustee.
Optional Redemption. For so long as the Trust is the Holder
of all the outstanding Junior Subordinated Debentures, the
proceeds of any optional redemption will be used by the Trust to
redeem Preferred Trust Securities and Common Trust Securities in
accordance with their terms.
Any optional redemption of Junior Subordinated Debentures
shall be made upon not less than 30 nor more than 60 days' notice
from the Debenture Trustee to the Holders of the Junior
Subordinated Debentures, as provided in the Subordinated
Indenture. All notices of redemption shall state the redemption
date; the redemption price plus accrued and unpaid interest; if
less than all the Junior Subordinated Debentures are to be
redeemed, the identification of those to be redeemed and the
portion of the principal amount of any Junior Subordinated
Debentures to be redeemed in part; that on the redemption date,
subject to the Debenture Trustee's receipt of the redemption
monies, the redemption price plus accrued and unpaid interest
will become due and payable upon the Junior Subordinated
Debenture to be redeemed and that interest thereon will cease to
accrue on and after said date; and the place or places where the
Junior Subordinated Debentures are to be surrendered for payment
of the redemption price plus accrued and unpaid interest (Section
404).
Interest. Except as provided in the applicable Prospectus
Supplement, the amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months
and for any period shorter than a full month, on the basis of the
actual number of days elapsed (Section 310). In the event that
any date on which interest is payable on the Junior Subordinated
Debentures is not a Business Day, then payment of the interest
payable on such date will 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, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on the
date the payment was originally payable (Section 113).
Option to Extend Interest Payment Period. So long as it is
not in default in the payment of interest on the Junior
Subordinated Debentures, the Company shall have the right under
the Subordinated Indenture to extend the interest payment period
from time to time on the Junior Subordinated Debentures to a
period not exceeding the period provided in the Prospectus
Supplement with respect to the Offered Trust Securities (Section
311). At the end of an Extension Period, the Company must pay
all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Junior Subordinated
Debentures, to the extent permitted by applicable law). However,
during any such Extension Period, the Company shall not declare
or pay any dividend or distribution (other than a dividend or
distribution in Common Stock of the Company) on, or redeem,
purchase, acquire or make a liquidation payment with respect to,
any of its capital stock, redeem any indebtedness that is pari
passu with the Junior Subordinated Debentures, or make any
guarantee payments with respect to the foregoing (Section 608).
Prior to the termination of any such Extension Period, the
Company may further extend the interest payment period, provided
that such Extension Period together with all such previous and
further extensions thereof shall not exceed the permitted length
of an Extension Period at any one time or extend beyond the
maturity date of the Junior Subordinated Debentures. Any
extension period with respect to payment of interest on the
Junior Subordinated Debentures, other securities issued pursuant
to the Subordinated Indenture (collectively with the Junior
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Subordinated Debentures, the Subordinated Indenture Securities)
or on any similar securities will apply to all such securities
and will also apply to distributions with respect to the Trust
Securities and all other securities with terms substantially the
same as the Trust Securities. Upon the termination of any such
Extension Period and the payment of all amounts then due, the
Company may select a new Extension Period, subject to the above
requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof. The Company will
give the Trust and the Debenture Trustee notice of its election
of an Extension Period prior to the earlier of (i) one Business
Day prior to the record date for the distribution which would
occur but for such election or (ii) the date the Company is
required to give notice to the NYSE or other applicable
self-regulatory organization of the record date and will cause
the Trust to send notice of such election to the Holders of
Preferred Trust Securities.
Additional Interest. So long as any Preferred Trust
Securities remain outstanding, if the Trust shall be required to
pay, with respect to its income derived from the interest
payments on the Junior Subordinated Debentures any amounts for or
on account of any taxes, duties, assessments or governmental
charges of whatever nature imposed by the United States, or any
other taxing authority, then, in any such case, the Company will
pay as interest on the Junior Subordinated Debentures such
additional interest (Additional Interest) as may be necessary in
order that the net amounts received and retained by the Trust
after the payment of such taxes, duties, assessments or
governmental charges shall result in the Trust's having such
funds as it would have had in the absence of the payment of such
taxes, duties, assessments or governmental charges (Section 312).
Defeasance. The principal amount of Subordinated Indenture
Securities issued under the Subordinated Indenture will be deemed
to have been paid for purposes of the Subordinated Indenture and
the entire indebtedness of the Company in respect thereof will be
deemed to have been satisfied and discharged, if there shall have
been irrevocably deposited with the Debenture Trustee or any
paying agent, in trust: (a) money in an amount which will be
sufficient, or (b) in the case of a deposit made prior to the
maturity of the Subordinated Indenture Securities, Government
Obligations (as defined herein), which do not contain provisions
permitting the redemption or other prepayment thereof at the
option of the issuer thereof, the principal of and the interest
on which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Debenture Trustee, will be
sufficient, or (c) a combination of (a) and (b) which will be
sufficient, to pay when due the principal of and premium, if any,
and interest, if any, due and to become due on the Subordinated
Indenture Securities that are outstanding (Section 701). For
this purpose, Government Obligations, include direct obligations
of, or obligations unconditionally guaranteed by, the United
States of America entitled to the benefit of the full faith and
credit thereof and certificates, depositary receipts or other
instruments which evidence a direct ownership interest in such
obligations or in any specific interest or principal payments due
in respect thereof (Section 101).
Subordination. The Junior Subordinated Debentures will be
subordinate and junior in right of payment to all Senior
Indebtedness of the Company as provided in the Subordinated
Indenture (Section 1501). No payment of principal of (including
redemption and sinking fund payments), or interest on, the Junior
Subordinated Debentures may be made (i) upon the occurrence of
certain events of bankruptcy, insolvency or reorganization, (ii)
if any Senior Indebtedness is not paid when due, (iii) if any
other default has occurred pursuant to which the Holders of
Senior Indebtedness have accelerated the maturity thereof and
with respect to (ii) and (iii), such default has not been cured
or waived, or (iv) if the maturity of Subordinated Indenture
Securities has been accelerated, because of an event of default
with respect thereto, which remains uncured. Upon any
distribution of assets of the Company to creditors upon any
dissolution, winding-up, liquidation or reorganization, whether
voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all principal of, and premium,
if any, and interest due or to become due on, all Senior
Indebtedness must be paid in full before the Holders of the
Junior Subordinated Debentures are entitled to receive or retain
any payment thereon (Section 1502). Subject to the prior payment
of all Senior Indebtedness, the rights of the Holders of the
Junior Subordinated Debentures will be subrogated to the rights
of the Holders of Senior Indebtedness to receive payments or
distributions applicable to Senior Indebtedness until all amounts
owing on the Junior Subordinated Debentures are paid in full
(Section 1504).
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The term Senior Indebtedness is defined in the Subordinated
Indenture to mean all obligations (other than non-recourse
obligations and the indebtedness issued under the Subordinated
Indenture) of, or guaranteed or assumed by, the Company for
borrowed money, including both senior and subordinated
indebtedness for borrowed money (other than the Subordinated
Indenture Securities), or for the payment of money relating to
any lease which is capitalized on the consolidated balance sheet
of the Company and its subsidiaries in accordance with generally
accepted accounting principles as in effect from time to time, or
evidenced by bonds, debentures, notes or other similar
instruments, and in each case, amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligations, whether existing as of the date of the Subordinated
Indenture or subsequently incurred by the Company unless, in the
case of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same or the
assumption or guarantee of the same expressly provides that such
indebtedness, renewal, extension or refunding is not superior in
right of payment to or is pari passu with the Junior Subordinated
Debentures; provided that the Company's obligations under the
Guarantee shall not be deemed to be Senior Indebtedness (Section
101).
The Subordinated Indenture does not limit the aggregate
amount of Senior Indebtedness that may be issued. As of December
31, 1997 the Company had approximately $675 million principal
amount of indebtedness for borrowed money constituting Senior
Indebtedness. In addition, as of December 31, 1997, there were
no contingent obligations constituting Senior Indebtedness where
there exists a financially viable and unrelated primary obligor
and where the risk of loss to the Company is, in the opinion of
the Company, remote.
Consolidation, Merger, and Sale of Assets. Under the terms
of the Subordinated Indenture, the Company may not consolidate
with or merge into any other entity or convey, transfer or lease
its properties and assets substantially as an entirety to any
entity, unless (i) the entity formed by such consolidation or
into which the Company is merged or the entity which acquires by
conveyance or transfer, or which leases, the property and assets
of the Company substantially as an entirety shall be an entity
organized and validly existing under the laws of any domestic
jurisdiction and such entity expressly assumes the Company's
obligations on all Subordinated Indenture Securities and under
the Subordinated Indenture, (ii) immediately after giving effect
to the transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing, and (iii) the
Company shall have delivered to the Debenture Trustee an
Officer's Certificate and an Opinion of Counsel as provided in
the Subordinated Indenture (Section 1101).
Events of Default. Each of the following will constitute an
Event of Default under the Subordinated Indenture with respect to
the Subordinated Indenture Securities of any series: (a) failure
to pay any interest on the Subordinated Indenture Securities of
such series within 30 days after the same becomes due and
payable; (b) failure to pay principal or premium, if any, on the
Subordinated Indenture Securities of such series when due and
payable; (c) failure to perform, or breach of, any other covenant
or warranty of the Company in the Subordinated Indenture (other
than a covenant or warranty of the Company in the Subordinated
Indenture solely for the benefit of one or more series of
Subordinated Indenture Securities other than such series) for 90
days after written notice to the Company by the Debenture
Trustee, or to the Company and the Debenture Trustee by the
Holders of at least 33% in principal amount of the Subordinated
Indenture Securities of such series outstanding under the
Subordinated Indenture as provided in the Subordinated Indenture;
(d) the entry by a court having jurisdiction in the premises of
(1) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law
or (2) a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition by one or
more Persons other than the Company seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company under any applicable federal or state law, or appointing
a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or for any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and any such decree or order for
relief or any such other decree or order shall have remained
unstayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other
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case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company in a case or other similar proceeding or
to the commencement of any bankruptcy or insolvency case or
proceeding against it under any applicable federal or state law
or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state
law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official
of the Company 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, or the authorization of such action
by the Board of Directors (Section 801).
An Event of Default with respect to the Subordinated
Indenture Securities of a particular series may not necessarily
constitute an Event of Default with respect to Subordinated
Indenture Securities of any other series issued under the
Subordinated Indenture.
If an Event of Default due to the default in payment of
principal of or interest on any series of Subordinated Indenture
Securities or due to the default in the performance or breach of
any other covenant or warranty of the Company applicable to the
Subordinated Indenture Securities of such series but not
applicable to all series occurs and is continuing, then either
the Debenture Trustee or the Holders of 33% in principal amount
of the outstanding Subordinated Indenture Securities of such
series may declare the principal of all of the Subordinated
Indenture Securities of such series and interest accrued thereon
to be due and payable immediately (subject to the subordination
provisions of the Subordinated Indenture). If an Event of
Default due to the default in the performance of any other
covenants or agreements in the Subordinated Indenture applicable
to all outstanding Subordinated Indenture Securities or due to
certain events of bankruptcy, insolvency or reorganization of the
Company has occurred and is continuing, either the Debenture
Trustee or the Holders of not less than 33% in principal amount
of all outstanding Subordinated Indenture Securities, considered
as one class, and not the Holders of the Subordinated Indenture
Securities of any one of such series may make such declaration of
acceleration (subject to the subordination provisions of the
Subordinated Indenture).
At any time after the declaration of acceleration with
respect to the Subordinated Indenture Securities of any series
has been made and before a judgment or decree for payment of the
money due has been obtained, the Event or Events of Default
giving rise to such declaration of acceleration will, without
further act, be deemed to have been waived, and such declaration
and its consequences will, without further act, be deemed to have
been rescinded and annulled, if
(a) the Company has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(1) all overdue interest on all Subordinated Indenture
Securities of such series;
(2) the principal of and premium, if any, on any
Subordinated Indenture Securities of such series which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor inthe Subordinated Indenture Securities;
(3) interest upon overdue interest at the rate or
rates prescribed therefor in the Subordinated Indenture
Securities, to the extent that payment of such interest is
lawful; and
(4) all amounts due to the Debenture Trustee under the
Subordinated Indenture;
(b) any other Event or Events of Default with respect to
Subordinated Indenture Securities of such series, other than the
nonpayment of the principal of the Subordinated Indenture
Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as
provided in the Subordinated Indenture (Section 802).
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Subject to the provisions of the Subordinated Indenture
relating to the duties of the Debenture Trustee in case an Event
of Default shall occur and be continuing, the Debenture Trustee
will be under no obligation to exercise any of its rights or
powers under the Subordinated Indenture at the request or
direction of any of the Holders, unless such Holders shall have
offered to the Debenture Trustee reasonable indemnity (Section
903). If an Event of Default has occurred and is continuing in
respect of a series of Subordinated Indenture Securities, subject
to such provisions for the indemnification of the Debenture
Trustee, the Holders of a majority in principal amount of the
outstanding Subordinated Indenture Securities of such series will
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee,
or exercising any trust or power conferred on the Debenture
Trustee, with respect to the Subordinated Indenture Securities of
such series; provided, however, that if an Event of Default
occurs and is continuing with respect to more than one series of
Subordinated Indenture Securities, the Holders of a majority in
aggregate principal amount of the outstanding Subordinated
Indenture Securities of all such series, considered as one class,
will have the right to make such direction, and not the Holders
of the Subordinated Indenture Securities of any one of such
series; and provided, further, that such direction will not be in
conflict with any rule of law or with the Subordinated Indenture.
(Section 812).
No Holder of Subordinated Indenture Securities of any series
will have any right to institute any proceeding with respect to
the Subordinated Indenture, or for the appointment of a receiver
or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Debenture Trustee written
notice of a continuing Event of Default with respect to the
Subordinated Indenture Securities of such series, (ii) the
Holders of not less than a majority in aggregate principal amount
of the outstanding Subordinated Indenture Securities of all
series in respect of which an Event of Default shall have
occurred and be continuing, considered as one class, have made
written request to the Debenture Trustee, and such Holder or
Holders have offered reasonable indemnity to the Debenture
Trustee to institute such proceeding in respect of such Event of
Default in its own name as trustee and (iii) the Debenture
Trustee has failed to institute any proceeding, and has not
received from the Holders of a majority in aggregate principal
amount of the outstanding Subordinated Indenture Securities of
such series a direction inconsistent with such request, within 60
days after such notice, request and offer (Section 807).
However, such limitations do not apply to a suit instituted by a
Holder of a Subordinated Indenture Security for the enforcement
of payment of the principal of or any premium or interest on such
Subordinated Indenture Security on or after the applicable due
date specified in such Subordinated Indenture Security (Section
808).
The Company will be required to furnish to the Debenture
Trustee annually a statement by an appropriate officer as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under the Subordinated Indenture, such
compliance to be determined without regard to any period of grace
or requirement of notice under the Subordinated Indenture
(Section 606).
Enforcement of Certain Rights by Holders of Preferred Trust
Securities. If an Event of Default has occurred and is
continuing, then the Holders of Trust Securities would rely on
the enforcement by the Property Trustee or the Debenture Trustee,
acting for the benefit of the Property Trustee, of its rights as
a holder of the Junior Subordinated Debentures against the
Company. Notwithstanding the foregoing, a Holder of Preferred
Trust Securities may enforce the Subordinated Indenture directly
against the Company to the same extent as if such Holder of
Preferred Trust Securities held a principal amount of Junior
Subordinated Debentures equal to the aggregate liquidation amount
of the Preferred Trust Securities of such Holder (Section 610).
See DESCRIPTION OF THE PREFERRED TRUST SECURITIES - "Events Of
Default; Notice."
The Holders of the Preferred Trust Securities would not be
able to exercise directly against the Company any rights other
than those set forth in the preceding paragraph available to the
holders of the Junior Subordinated Debentures unless the Property
Trustee fail to exercise its rights against the Company or the
Debenture Trustee, acting for the benefit of the Property
Trustee, fails to do so for 60 days after receipt of a written
request from the Property Trustee. In such event, to the fullest
extent permitted by law, the holders of a majority of the
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aggregate liquidation amount of the outstanding Preferred Trust
Securities would have the right to directly institute proceedings
for enforcement of such rights (Section 807).
Modification and Waiver. Without the consent of any Holder
of Subordinated Indenture Securities, the Company and the
Debenture Trustee may enter into one or more supplemental
indentures for any of the following purposes: (a) to evidence the
assumption by any permitted successor to the Company of the
covenants of the Company in the Subordinated Indenture and in the
Subordinated Indenture Securities; or (b) to add one or more
covenants of the Company or other provisions for the benefit of
the Holders of outstanding Subordinated Indenture Securities or
to surrender any right or power conferred upon the Company by the
Subordinated Indenture; or (c) to add any additional Events of
Default with respect to outstanding Subordinated Indenture
Securities; or (d) to change or eliminate any provision of the
Subordinated Indenture or to add any new provision to the
Subordinated Indenture, provided that if such change, elimination
or addition will adversely affect the interests of the Holders of
Subordinated Indenture Securities of any series in any material
respect, such change, elimination or addition will become
effective with respect to such series only (1) when the consent
of the Holders of Subordinated Indenture Securities of such
series has been obtained in accordance with the Subordinated
Indenture, or (2) when no Subordinated Indenture Securities of
such series remain outstanding under the Subordinated Indenture;
or (e) to provide collateral security for all but not part of the
Subordinated Indenture Securities; (f) to establish the form or
terms of Subordinated Indenture Securities of any other series as
permitted by the Subordinated Indenture; or (g) to provide for
the authentication and delivery of bearer securities and coupons
appertaining thereto representing interest, if any, thereon and
for the procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the solicitation of
the vote or consent of, the Holders thereof, and for any and all
other matters incidental thereto; or (h) to evidence and provide
for the acceptance of appointment of a successor trustee under
the Subordinated Indenture with respect to the Subordinated
Indenture Securities of one or more series and to add to or
change any of the provisions of the Subordinated Indenture as
shall be necessary to provide for or to facilitate the
administration of the trusts under the Subordinated Indenture by
more than one trustee; or (i) to provide for the procedures
required to permit the utilization of a noncertificated system of
registration for the Subordinated Indenture Securities of all or
any series; or (j) to change any place where (1) the principal of
and premium, if any, and interest, if any, on all or any series
of Subordinated Indenture Securities shall be payable, (2) all or
any series of Subordinated Indenture Securities may be
surrendered for registration of transfer or exchange and (3)
notices and demands to or upon the Company in respect of
Subordinated Indenture Securities and the Subordinated Indenture
may be served; or (k) to cure any ambiguity or inconsistency or
to add or change any other provisions with respect to matters and
questions arising under the Subordinated Indenture, provided such
changes or additions shall not adversely affect the interests of
the Holders of Subordinated Indenture Securities of any series in
any material respect (Section 1201).
The Holders of at least a majority in aggregate principal
amount of the Subordinated Indenture Securities of all series
then outstanding may waive compliance by the Company with certain
restrictive provisions of the Subordinated Indenture (Section
607). The Holders of not less than a majority in principal
amount of the outstanding Subordinated Indenture Securities of
any series may waive any past default under the Subordinated
Indenture with respect to such series, except a default in the
payment of principal, premium, or interest and certain covenants
and provisions of the Subordinated Indenture that cannot be
modified or be amended without the consent of the Holder of each
outstanding Subordinated Indenture Security of such series
affected (Section 813).
Without limiting the generality of the foregoing, if the
Trust Indenture Act is amended after the date of the Subordinated
Indenture in such a way as to require changes to the Subordinated
Indenture or the incorporation therein of additional provisions
or so as to permit changes to, or the elimination of, provisions
which, at the date of the Subordinated Indenture or at any time
thereafter, were required by the Trust Indenture Act to be
contained in the Subordinated Indenture, the Subordinated
Indenture will be deemed to have been amended so as to conform to
such amendment of the Trust Indenture Act or to effect such
changes, additions or elimination, and the Company and the
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Debenture Trustee may, without the consent of any Holders, enter
into one or more supplemental indentures to evidence or effect
such amendment (Section 1201).
Except as provided above, the consent of the Holders of not
less than a majority in aggregate principal amount of the
Subordinated Indenture Securities of all series then outstanding,
considered as one class, is required for the purpose of adding
any provisions to, or changing in any manner, or eliminating any
of the provisions of, the Subordinated Indenture or modifying in
any manner the rights of the Holders of the Subordinated
Indenture Securities under the Subordinated Indenture pursuant to
one or more supplemental indentures; provided, however, that if
less than all of the series of Subordinated Indenture Securities
outstanding are directly affected by a proposed supplemental
indenture, then the consent only of the Holders of a majority in
aggregate principal amount of outstanding Subordinated Indenture
Securities of all series so directly affected, considered as one
class, will be required; and provided further, that no such
amendment or modification may (a) change the Stated Maturity of
the principal of, or any installment of principal of or interest
on, any Subordinated Indenture Security, or reduce the principal
amount thereof or the rate of interest thereon (or the amount of
any installment of interest thereon) or change the method of
calculating such rate or reduce any premium payable upon the
redemption thereof, or change the coin or currency (or other
property) in which any Subordinated Indenture Security or any
premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or
after the Stated Maturity of any Subordinated Indenture Security
(or, in the case of redemption, on or after the Redemption Date)
without, in any such case, the consent of the Holder of such
Subordinated Indenture Security, (b) reduce the percentage in
principal amount of the outstanding Subordinated Indenture
Securities of any series, (or, if applicable, in liquidation
preference of Preferred Trust Securities) the consent of the
Holders of which is required for any such supplemental indenture,
or the consent of the Holders of which is required for any waiver
of compliance with any provision of the Subordinated Indenture or
any default thereunder and its consequences, or reduce the
requirements for quorum or voting, without, in any such case, the
consent of the Holder of each outstanding Subordinated Indenture
Security of such series, or (c) modify certain of the provisions
of the Subordinated Indenture relating to supplemental
indentures, waivers of certain covenants and waivers of past
defaults with respect to the Subordinated Indenture Securities of
any series, without the consent of the Holder of outstanding
Subordinated Indenture Securities affected thereby. A
supplemental indenture which changes or eliminates any covenant
or other provision of the Subordinated Indenture which has
expressly been included solely for the benefit of one or more
particular series of Subordinated Indenture Securities, or
modifies the rights of the Holders of Subordinated Indenture
Securities of such series with respect to such covenant or other
provision, will be deemed not to affect the rights under the
Subordinated Indenture of the Holders of the Subordinated
Indenture Securities of any other series. Notwithstanding the
foregoing, so long as any of the Preferred Trust Securities remain
outstanding, the Debenture Trustee may not consent to a
supplemental indenture without the prior consent, obtained as
provided in the Trust Agreement, of the holders of not less than
a majority in aggregate liquidation preference of all Preferred
Trust Securities, considered as one class, or, in the case of
changes described in clauses (a), (b) and (c) above, 100% in
aggregate liquidation preference of all such Preferred Trust
Securities then outstanding which would be affected thereby,
considered as one class. A supplemental indenture which changes
or eliminates any covenant or other provision of the Subordinated
Indenture which has expressly been included solely for the benefit
of one or more particular series of Subordinated Indenture
Securities, or which modifies the rights of the Holders of
Subordinated Indenture Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect
the rights under the Subordinated Indenture of the Holders of
Subordinated Indenture Securities of any other series (Section
1202).
The Subordinated Indenture provides that in determining
whether the Holders of the requisite principal amount of the
outstanding Subordinated Indenture Securities have given any
request, demand, authorization, direction, notice, consent or
waiver under the Subordinated Indenture, or whether a quorum is
present at the meeting of the Holders of Subordinated Indenture
Securities, Subordinated Indenture Securities owned by the
Company or any other obligor upon the Subordinated Indenture
Securities or any affiliate of the Company or of such other
obligor (unless the Company, such affiliate or such obligor owns
all Subordinated Indenture Securities outstanding under the
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Subordinated Indenture, determined without regard to this
provision) shall be disregarded and deemed not to be outstanding
(Section 101).
If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, election,
waiver or other Act, the Company may, at its option, fix in
advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice,
consent, waiver or other such act, but the Company shall have no
obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of the
outstanding Subordinated Indenture Securities have authorized or
agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that
purpose the outstanding Subordinated Indenture Securities shall
be computed as of the record date. Any request, demand,
authorization, direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future Holder of the same
Subordinated Indenture Security and the Holder of every
Subordinated Indenture 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
Debenture Trustee or the Company in reliance thereon, whether or
not notation of such action is made upon such Subordinated
Indenture Security (Section 104).
Resignation of Debenture Trustee. The Debenture Trustee may
resign at any time by giving written notice thereof to the
Company or may be removed at any time by Act of the Holders of a
majority in principal amount of all series of Subordinated
Indenture Securities then outstanding delivered to the Debenture
Trustee and the Company. No resignation or removal of the
Debenture Trustee and no appointment of a successor trustee will
become effective until the acceptance of appointment by a
successor trustee in accordance with the requirements of the
Subordinated Indenture. So long as no Event of Default or event
which, after notice or lapse of time, or both, would become an
Event of Default has occurred and is continuing and except with
respect to a Debenture Trustee appointed by Act of the Holders,
if the Company has delivered to the Debenture Trustee a
resolution of its Board of Directors appointing a successor
trustee and such successor has accepted such appointment in
accordance with the terms of the Subordinated Indenture, the
Debenture Trustee will be deemed to have resigned and the
successor will be deemed to have been appointed as trustee in
accordance with the Subordinated Indenture (Section 910).
Notices. Notices to Holders of Subordinated Indenture
Securities will be given by mail to the addresses of such Holders
as they may appear in the security register therefor (Section
106).
Title. The Company, the Debenture Trustee, and any agent of
the Company or the Debenture Trustee, may treat the Person in
whose name Subordinated Indenture Securities are registered as
the absolute owner thereof (whether or not such Subordinated
Indenture Securities may be overdue) for the purpose of making
payments and for all other purposes irrespective of notice to the
contrary (Section 308).
Governing Law. The Subordinated Indenture and Subordinated
Indenture Securities will be governed by, and construed in
accordance with, the laws of the State of New York (Section 112).
Regarding the Debenture Trustee. The Debenture Trustee
under the Subordinated Indenture is The Bank of New York. In
addition to acting as Debenture Trustee under the Subordinated
Indenture, The Bank of New York acts, and may act, as trustee
under various indentures and trusts of the Company and its
affiliates, including, but not limited to the Trust Agreement,
the Guarantee and any Indenture, each as described herein. The
Company and its affiliates also maintain various banking and
trust relationships with The Bank of New York. The Bank of New
York (Delaware) acts as the Delaware Trustee under the Trust
Agreement. See DESCRIPTION OF THE PREFERRED TRUST SECURITIES --
"Regarding the Property Trustee."
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CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
RELATING TO THE PREFERRED TRUST SECURITIES
The following summary describes certain United States
federal income tax consequences of the ownership of Preferred
Trust Securities as of the date hereof and represents the opinion
of Reid & Priest LLP, counsel to the Company, insofar as it
relates to matters of law or legal conclusions. Except where
noted, it deals only with Preferred Trust Securities held as
capital assets and does not deal with special situations, such as
those of dealers in securities or currencies, financial
institutions, life insurance companies, persons holding Preferred
Trust Securities as a part of a hedging or conversion transaction
or a straddle, United States Holders (as defined herein) whose
"functional currency" is not the U.S. dollar, or persons who are
not United States Holders. In addition, this discussion does not
address the tax consequences to persons who purchase Preferred
Trust Securities other than pursuant to their initial issuance
and distribution. Furthermore, the discussion below is based
upon the provisions of the Internal Revenue Code of 1986, as
amended (Code), and regulations, rulings and judicial decisions
thereunder as of the date hereof, and such authorities may be
repealed, revoked or modified so as to result in federal income
tax consequences different from those discussed below.
PROSPECTIVE PURCHASERS OF PREFERRED TRUST SECURITIES,
INCLUDING PERSONS WHO ARE NOT UNITED STATES HOLDERS AND PERSONS
WHO PURCHASE PREFERRED TRUST SECURITIES IN THE SECONDARY MARKET,
ARE ADVISED TO CONSULT WITH THEIR TAX ADVISORS AS TO THE UNITED
STATES FEDERAL INCOME TAX CONSEQUENCES OF THE OWNERSHIP AND
DISPOSITION OF PREFERRED TRUST SECURITIES IN LIGHT OF THEIR
PARTICULAR CIRCUMSTANCES, AS WELL AS THE EFFECT OF ANY STATE,
LOCAL OR OTHER TAX LAWS.
UNITED STATES HOLDERS
As used herein, a "United States Holder" means a Holder that
is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof,
an estate the income of which is subject to United States federal
income taxation regardless of its source, or a trust the
administration of which is subject to the primary supervision of
a court within the United States and for which one or more United
States individuals have the authority to control all substantial
decisions.
CLASSIFICATION OF THE TRUST
Reid & Priest LLP, tax counsel to the Company and the Trust,
is of the opinion that, under current law and assuming full
compliance with the terms of the Subordinated Indenture and the
instruments establishing the Trust (and certain other documents),
the Trust will be classified as a "grantor trust" for federal
income tax purposes and will not be classified as an association
taxable as a corporation. Each Holder will be treated as owning
an undivided beneficial interest in the Junior Subordinated
Debentures. Investors should be aware that the opinion of Reid &
Priest LLP does not address any other issue and is not binding on
the Internal Revenue Service or the courts.
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBENTURES
Based on the advice of Reid & Priest LLP, the Company
believes and intends to take the position that the Junior
Subordinated Debentures will constitute indebtedness for United
States federal income tax purposes. No assurance can be given
that such position will not be challenged by the Internal Revenue
Service or, if challenged, that such a challenge will not be
successful. By purchasing and accepting Preferred Trust
Securities, each Holder covenants to treat the Junior
Subordinated Debentures as indebtedness and the Preferred Trust
Securities as evidence of an indirect beneficial ownership in the
Junior Subordinated Debentures. The remainder of this discussion
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assumes that the Junior Subordinated Debentures will be
classified as indebtedness of the Company for United States
federal income tax purposes.
PAYMENTS OF INTEREST
Except as set forth below, stated interest on a Junior
Subordinated Debenture will generally be taxable to a United
States Holder as ordinary income at the time it is paid or
accrued in accordance with the United States Holder's method of
accounting for tax purposes.
ORIGINAL ISSUE DISCOUNT
Under the income tax regulations that recently became
effective, the Company believes that the Junior Subordinated
Debentures will not be treated as issued with OID. It should be
noted that these regulations have not yet been addressed in any
rulings or other interpretations by the IRS. Accordingly, it is
possible that the IRS could take a position contrary to the
interpretation described herein.
Under the Subordinated Indenture, the Company has the right
to defer the payment of interest on the Junior Subordinated
Debentures at any time or from time to time for a period not
exceeding 10 consecutive semi-annual periods with respect to each
Extension Period, provided, however, that no Extension Period may
extend beyond the Stated Maturity (as defined in the Subordinated
Indenture) of the Junior Subordinated Debentures. Should the
Company exercise its rights to defer payments of interest, the
Junior Subordinated Debentures would at that time be treated as
issued with OID for so long as they remained outstanding. As a
result, all United States Holders would, in effect, be required
to accrue interest income even if such United States Holders are
on a cash method of accounting. Consequently, in the event that
the payment of interest is deferred, a United States Holder could
be required to include OID in income on an economic accrual
basis, notwithstanding that the Company will not make any
interest payments during such period on the Junior Subordinated
Debentures.
RECEIPT OF JUNIOR SUBORDINATED DEBENTURES OR CASH UPON
LIQUIDATION OF THE TRUST
As described under the caption DESCRIPTION OF THE PREFERRED
TRUST SECURITIES -- "Distribution of the Junior Subordinated
Debentures," Junior Subordinated Debentures may be distributed to
Holders of Preferred Trust Securities in exchange for the
Preferred Trust Securities upon liquidation of the Trust. Under
current law, for United States federal income tax purposes, such
a distribution would be treated as a non-taxable event to each
United States Holder, and each United States Holder would receive
an aggregate tax basis in the Junior Subordinated Debentures
equal to such Holder's aggregate tax basis in its Preferred Trust
Securities. A United States Holder's holding period for the
Junior Subordinated Debentures received in liquidation of the
Trust would include the period during which such Holder held the
Preferred Trust Securities.
Under certain circumstances, as described under the caption
DESCRIPTION OF THE PREFERRED TRUST SECURITIES -- "Redemption of
Preferred Trust Securities," the Junior Subordinated Debentures
may be redeemed for cash and the proceeds of such redemption
distributed to Holders of Preferred Trust Securities in
redemption of the Preferred Trust Securities. Under current law,
such a redemption would, for United States federal income tax
purposes, constitute a taxable disposition of the Preferred Trust
Securities, and a Holder would recognize gain or loss as if such
Holder had sold such redeemed Preferred Trust Securities. See
"Sale, Exchange and Redemption of the Preferred Trust
Securities."
SALE, EXCHANGE AND REDEMPTION OF THE PREFERRED TRUST
SECURITIES
Upon the sale, exchange or redemption of Preferred Trust
Securities, a United States Holder will recognize gain or loss
equal to the difference between the amount realized upon the sale
(other than amounts attributable to accrued, unpaid interest),
exchange or redemption and such Holder's adjusted tax basis in
the Preferred Trust Securities. Such gain or loss will be
capital gain or loss and will be long-term capital gain or loss
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<PAGE>
if at the time of sale, exchange or redemption, the Preferred
Trust Securities have been held for more than one year. Generally,
for non-corporate United States Holders, net capital gains on
assets held for more than one year but not more than 18 months
will be subject to federal income tax at a maximum rate of 28%
and net capital gains on assets held for more than 18 months will
be subject to federal income tax at a maximum rate of 20%. Under
current law, deductibility of capital losses is subject to
limitations.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Subject to the qualification discussed below, income on the
Preferred Trust Securities will be reported to Holders on Forms
1099, which should be mailed to such Holders by January 31
following each calendar year.
The Trust will report annually to the holder of record of
the Preferred Trust Securities, the interest income paid or OID
accrued during the year with respect to the Junior Subordinated
Debentures. The Trust currently intends to report such
information on Form 1099 prior to January 31 following each
calendar year. Under current law, holders of record of Preferred
Trust Securities who hold as nominees for beneficial holders will
not have any obligation to report information regarding the
beneficial holders to the Trust. The Trust, moreover, will not
have any obligation to report to beneficial holders who are not
also record holders. Thus, beneficial holders of Preferred Trust
Securities who hold their Preferred Trust Securities through
nominee holders will typically receive Forms 1099 reflecting the
income on their Preferred Trust Securities from such nominee
holders rather than from the Trust.
Payments made in respect of, and proceeds from the sale of,
Preferred Trust Securities (or Junior Subordinated Debentures
distributed to holders of Preferred Trust Securities) may be
subject to "backup" withholding tax of 31% if the holder fails to
comply with certain identification requirements, or has
previously failed to report in full dividend and interest income,
or does not otherwise establish its entitlement to an exemption.
Any withheld amounts will be allowed as a refund or a credit
against the holder's United States federal income tax liability,
provided the required information is provided to the Internal
Revenue Service.
EXPERTS AND LEGALITY
The consolidated financial statements included in the latest
Annual Report of the Company on Form 10-K, incorporated herein by
reference, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report included in said
latest Annual Report of the Company on Form 10-K, and have been
incorporated by reference herein in reliance upon such report
given upon authority of the firm as experts in accounting and
auditing.
With respect to any unaudited condensed consolidated interim
financial information included in the Company's Quarterly Reports
on Form 10-Q which are or will be incorporated herein by
reference, Deloitte & Touche LLP has applied limited procedures
in accordance with professional standards for reviews of such
information. As stated in any of their reports included in the
Company's Quarterly Reports on Form 10-Q, which are or will be
incorporated herein by reference, Deloitte & Touche LLP did not
audit and did not express an opinion on such interim financial
information. Deloitte & Touche LLP is not subject to the
liability provisions of Section 11 of the 1933 Act for any of
their reports on such unaudited condensed consolidated interim
financial information because such reports are not "reports" or a
"part" of the Registration Statement filed under the 1933 Act
with respect to the Securities prepared or certified by an
accountant within the meaning of Sections 7 and 11 of the 1933
Act.
Certain matters of Delaware law relating to the validity of
the Preferred Trust Securities, the enforceability of the Trust
Agreement and the creation of the Trust are being passed upon by
Richards, Layton & Finger, P. A., Special Delaware counsel for
the Company and the Trust. Statements as to United States
federal income taxation under CERTAIN UNITED STATES FEDERAL
INCOME TAX CONSEQUENCES RELATING TO THE PREFERRED TRUST
SECURITIES herein have been passed upon for the Company and the
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Trust by Reid & Priest LLP, New York, New York, of counsel to the
Company. The legality of the other securities offered hereby
will be passed upon for the Company and the Trust by Worsham,
Forsythe & Wooldridge, L.L.P. and by Reid & Priest LLP, and for
the Underwriters by Winthrop, Stimson, Putnam & Roberts, New
York, New York. However, all matters pertaining to incorporation
of the Company and all other matters of Texas law will be passed
upon only by Worsham, Forsythe & Wooldridge, L.L.P. At October
31, 1997, members of the firm of Worsham, Forsythe & Wooldridge,
L.L.P. owned approximately 41,200 shares of the common stock of
Texas Utilities, which owns all of the common stock of the
Company.
PLAN OF DISTRIBUTION
The Company may sell the Securities in any of three ways:
(i) through underwriters or dealers; (ii) directly to a limited
number of purchasers or to a single purchaser; or (iii) through
agents. The Prospectus Supplement with respect to the Offered
Securities sets forth the terms of the offering of the Offered
Securities, including the name or names of any underwriters,
dealers or agents, the purchase price of such Offered Securities
and the proceeds to the Company from such sale, any underwriting
discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts
or concessions allowed or reallowed or paid to dealers. Any
initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time
to time.
If underwriters are used in the sale, the Offered Securities
will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of the sale.
The underwriter or underwriters with respect to a particular
underwritten offering of Offered Securities are named in the
Prospectus Supplement relating to such offering and, if an
underwriting syndicate is used, the managing underwriter or
underwriters are set forth on the cover page of such Prospectus
Supplement. Unless otherwise set forth in the Prospectus
Supplement, the obligations of the underwriters to purchase the
Offered Securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all
such Offered Securities if any are purchased.
Offered Trust Securities may be sold directly by the Company
or through agents designated by the Company from time to time.
The Prospectus Supplement sets forth the name of any agent
involved in the offer or sale of the Offered Trust Securities in
respect of which the Prospectus Supplement is delivered as well
as any commissions payable by the Company to such agent. Unless
otherwise indicated in the Prospectus Supplement, any such agent
will be acting on a best efforts basis for the period of its
appointment.
If so indicated in the Prospectus Supplement, the Company
will authorize agents, underwriters or dealers to solicit offers
by certain specified institutions to purchase Offered Trust
Securities from the Company at the public offering price set
forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date
in the future. Such contracts will be subject to those conditions
set forth in the Prospectus Supplement, and the Prospectus
Supplement will set forth the commission payable for solicitation
of such contracts.
Subject to certain conditions, the Company may agree to
indemnify the several underwriters or agents and their
controlling persons against certain liabilities, including
liabilities under the 1933 Act arising out of or based upon,
among other things, any untrue statement or alleged untrue
statement of a material fact contained in the registration
statement, this Prospectus, a Prospectus Supplement or the
Incorporated Documents or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. See the
applicable Prospectus Supplement.
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NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN
THOSE CONTAINED IN THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT
IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND ANY
PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY OTHER PERSON, UNDERWRITER, DEALER OR AGENT.
NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE
IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF.
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT DOES NOT CONSTITUTE
AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE
PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO
SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses payable by the
Company in connection with the issuance and distribution of the
securities to be registered.
Filing fee Securities and Exchange Commission $ 81,125
Fees of the Trustee 80,000*
Fees of Company's counsel
Worsham, Forsythe & Wooldridge, L.L.P. 150,000*
Reid & Priest LLP 150,000*
Richards, Layton & Finger, P.A. 10,000
Auditors' fees 25,000*
Rating agencies' fees 30,000*
Printing, including Registration Statement,
prospectuses, exhibits, etc. 10,000*
Miscellaneous 28,875*
---------
Total expenses $565,000*
---------
--------------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02-1 of the Texas Business Corporation Act permits
the Company, in certain circumstances, to indemnify any present
or former director, officer, employee or agent of the Company
against judgments, penalties, fines, settlements and reasonable
expenses incurred in connection with a proceeding in which any
such person was, is or is threatened to be, made a party by
reason of holding such office or position, but only to a limited
extent for obligations resulting from a proceeding in which the
person is found liable on the basis that a personal benefit was
improperly received or in circumstances in which the person is
found liable in a derivative suit brought on behalf of the
Company.
Article Eight of the Restated Articles of Incorporation of
the Company, as amended, provides as follows:
"No director of this Corporation shall be liable to
this Corporation or its shareholders for monetary damages
for an act or omission in such director's capacity as a
director of this Corporation, except this Article Eight does
not eliminate or limit the liability of a director of this
Corporation for (1) a breach of the director's duty of
loyalty to this Corporation or its shareholders, (2) an act
or omission not in good faith or that involves intentional
misconduct or a knowing violation of the law, (3) a
transaction from which the director received an improper
benefit, whether or not the benefit resulted from an action
taken within the scope of the director's office, (4) an act
or omission for which the liability of the director is
expressly provided for by statute, or (5) an act related to
an unlawful stock repurchase or payment of a dividend.
Section 1 of Article XIII of the Company's Bylaws is as
follows:
"Section 1. The corporation shall indemnify any person
who (1) is or was a director, officer, employee or agent of
the corporation, or (2) while a director, officer, employee
or agent of the corporation, its divisions or subsidiaries,
is or was serving at the request of the corporation,
II-1
<PAGE>
pursuant to a resolution adopted by the Board of Directors,
as a director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another
foreign or domestic corporation, partnership, joint venture,
sole proprietorship, trust, employee benefit plan or other
enterprise, to the fullest extent that a corporation may or
is required to grant indemnification to a director under the
Texas Business Corporation Act. The corporation, pursuant
to a resolution adopted by the Board of Directors, may
indemnify any such person to such further extent as
permitted by law."
The Company has entered into agreements with certain of its
officers and directors which provide, among other things, for
their indemnification by the Company to the fullest extent
permitted by Texas law.
The Company has insurance covering its expenditures which
might arise in connection with its lawful indemnification of its
directors and officers for their liabilities and expenses.
Directors and officers of the Company also have insurance which
insures them against certain other liabilities and expenses.
ITEM 16. EXHIBITS.
PREVIOUSLY
FILED*
----------------
---
With File As
Exhibit Number Exhibit
------- --------- -------
1(a) -- Form of Underwriting
Agreement for Debt
Securities.
1(b) -- Form of Underwriting
Agreement for Preferred
Trust Securities.
1(c)** -- Form of Distribution
(Sales Agency) Agreement.
4(a)-1 1-3183 Form 3.1 -- Restated Articles of
10-K Incorporation of the
December Company, as amended
31, 1996 through December 31,
1996.
4(a)-2 -- Articles of Merger of
Lone Star Energy Company
with and into the
Company.
4(a)-3 -- Articles of Merger of
Enserch Exploration
Holdings, Inc. with and
into the Company.
4(a)-4 -- Assumed Name Certificate
re. Lone Star Energy
Company.
4(a)-5a -- Articles of Merger of
ENSERCH Merger Corp. with
and into the Company.
4(a)-5b 333-12391 2(a) -- Annex I to Articles of
Merger of ENSERCH Merger Corp.
with and into the Company
(Amended and Restated
Agreement and Plan of Merger
dated as of April 13, 1996
by and among the Company,
Texas Utilities and TEI).
4(b) 1-3183 Form 3.2 -- Bylaws of the Company, as
10-K amended.
December
31, 1994
4(c) -- Form of Indenture (For
Unsecured Debt
Securities) between the
Company and The Bank of
New York, Trustee.
4(d) -- Form of Officer's
Certificate, establishing
the Debt Securities, with
Form of Debt Security
attached.
4(e) -- Trust Agreement of
ENSERCH Capital I.
II-2
<PAGE>
4(f) -- Form of Amended and
Restated Trust Agreement.
4(g) -- Form of Indenture (For
Unsecured Subordinated
Debt Securities relating
to Trust Securities).
4(h) -- Form of Officer's
Certificate establishing
the Junior Subordinated
Debentures with Form of
Junior Subordinated
Debenture attached.
4(i) -- Form of Guarantee
Agreement relating to the
Preferred Trust
Securities.
4(j) -- Form of Agreement as to
Expenses and Liabilities
relating to the Preferred
Trust Securities.
4(k) -- Form of Preferred Trust
Securities.
5(a) -- Opinion of Worsham,
Forsythe & Wooldridge,
L.L.P., General Counsel
for the Company.
5(b) -- Opinion of Reid & Priest
and 8 LLP, of Counsel to the
Company.
5(c) -- Opinion of Richards,
Layton & Finger, P.A.,
Special Delaware Counsel
to the Trust and the
Company.
12 -- Computation of Ratios of
Earnings to Fixed Charges
and Earnings to Combined
Fixed Charges and
Preferred Dividends of
the Company.
15 -- Letter of Deloitte &
Touche LLP regarding
unaudited condensed
interim financial
information.
23(a) -- Independent Auditors'
Consent.
23(b) -- Consents of Worsham,
Forsythe & Wooldridge,
L.L.P., Reid & Priest LLP
and Richards, Layton &
Finger, P.A., are
contained in Exhibits
5(a), 5(b) and 5(c),
respectively.
24 -- Power of Attorney (see
Pages II-5 and II-6).
25(a) -- Statement on Form T-1 of
The Bank of New York with
respect to the Indenture
of the Company.
25(b) -- Statement on Form T-1 of
The Bank of New York with
respect to the Amended
and Restated Trust
Agreement for the Trust.
25(c) -- Statement on Form T-1 of
The Bank of New York with
respect to the
Subordinated Indenture of
the Company.
25(d) -- Statement on Form T-1 of
The Bank of New York with
respect to the Guarantee
Agreement relating to the
Preferred Trust
Securities.
-----------------------------------------
*Incorporated herein by reference.
**To be filed by amendment.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS.
a. The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) under the Securities
Act of 1933 if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change tosuch information in theregistration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3,
Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability
under the Securities Act of 1933, each filing of the
registrant's Annual Report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by
reference in the registration statement shall be deemed to
be a new registration statement relating to the securities
offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
b. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrants pursuant to
the provisions described under Item 15 above, or otherwise, the
registrants have been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrants of expenses incurred or paid by a director, officer
or controlling person of the registrants in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrants will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933, and will be
governed by the final adjudication of such issue.
II-4
<PAGE>
POWER OF ATTORNEY
Each director, and/or officer of ENSERCH Corporation
whose signature appears below hereby appoints the Agents for
Service named in this registration statement, and each of them
severally, as his attorney-in-fact to sign in his name and behalf,
in any and all capacities stated below, and to file with the
Securities and Exchange Commission, any and all amendments,
including post-effective amendments, to this registration
statement, and each registrant hereby also appoints each such
Agent for Service as its attorney-in-fact with like authority to
sign and file any such amendments in its name and on its behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Dallas, and State of Texas, on the 6th day of
January, 1998.
ENSERCH CORPORATION
By: /s/ Erle Nye
---------------------------
(Erle Nye, Chairman of
the Board and Chief
Executive)
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the
following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/S/ Erle Nye Principal
------------------------ Executive January 6, 1998
(Erle Nye, Chairman of Officer and
the Board and Chief Director
Executive)
/s/ Robert S. Shapard Principal
------------------------- Financial January 6, 1998
(Robert S. Shapard) Officer
/s/ Jerry W. Pinkerton Principal
------------------------- Accounting January 6, 1998
(Jerry W. Pinkerton) Officer
/s/ D. W. Biegler) Director
-------------------------- January 6, 1998
(D. W. Biegler)
/s/ Barbara B. Curry Director
-------------------------- January 6, 1998
(Barbara B. Curry)
/s/ H. Jarrell Gibbs Director
-------------------------- January 6, 1998
(H. Jarrell Gibbs)
/s/ Michael J. McNally Director
-------------------------- January 6, 1998
(Michael J. McNally)
/s/ Robert A. Wooldridge Director
-------------------------- January 6, 1998
(Robert A. Wooldridge)
II-5
<PAGE>
POWER OF ATTORNEY
Each trustee of ENSERCH Capital I whose signature appears
below hereby appoints the Agents for Service named in this
registration statement, and each of them severally, as his attorney-
in-fact to sign in his name and behalf, in any and all capacities
stated below, and to file with the Securities and Exchange
Commission, any and all amendments, including post-effective
amendments, to this registration statement, and each registrant
hereby also appoints each such Agent for Service as its attorney-
in-fact with like authority to sign and file any such amendments
in its name and on its behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Dallas, and State of Texas, on the 6th day of
January, 1998.
ENSERCH CAPITAL I
By: /s/ Michael Perkins
----------------------------
Michael Perkins, not in his
individual capacity but
solely as Trustee
II-6
<PAGE>
EXHIBIT INDEX
PREVIOUSLY
FILED*
----------------
---
With File As
Exhibit Number Exhibit
------- --------- -------
1(a) -- Form of Underwriting
Agreement for Debt
Securities.
1(b) -- Form of Underwriting
Agreement for Preferred
Trust Securities.
1(c)** -- Form of Distribution
(Sales Agency) Agreement.
4(a)-1 1-3183 Form 3.1 -- Restated Articles of
10-K Incorporation of the
December Company, as amended
31, 1996 through December 31,
1996.
4(a)-2 -- Articles of Merger of
Lone Star Energy Company
with and into the
Company.
4(a)-3 -- Articles of Merger of
Enserch Exploration
Holdings, Inc. with and
into the Company.
4(a)-4 -- Assumed Name Certificate
re. Lone Star Energy
Company.
4(a)-5a -- Articles of Merger of
ENSERCH Merger Corp. with
and into the Company.
4(a)-5b 333-12391 2(a) -- Annex I to Articles of
Merger of ENSERCH Merger Corp.
with and into the Company
(Amended and Restated
Agreement and Plan of Merger
dated as of April 13, 1996
by and among the Company,
Texas Utilities and TEI).
4(b) 1-3183 Form 3.2 -- Bylaws of the Company, as
10-K amended.
December
31, 1994
4(c) -- Form of Indenture (For
Unsecured Debt
Securities) between the
Company and The Bank of
New York, Trustee.
4(d) -- Form of Officer's
Certificate, establishing
the Debt Securities, with
Form of Debt Security
attached.
4(e) -- Trust Agreement of
ENSERCH Capital I.
4(f) -- Form of Amended and
Restated Trust Agreement.
4(g) -- Form of Indenture (For
Unsecured Subordinated
Debt Securities relating
to Trust Securities).
4(h) -- Form of Officer's
Certificate establishing
the Junior Subordinated
Debentures with Form of
Junior Subordinated
Debenture attached.
4(i) -- Form of Guarantee
Agreement relating to the
Preferred Trust
Securities.
4(j) -- Form of Agreement as to
Expenses and Liabilities
relating to the Preferred
Trust Securities.
4(k) -- Form of Preferred Trust
Securities.
5(a) -- Opinion of Worsham,
Forsythe & Wooldridge,
L.L.P., General Counsel
for the Company.
5(b) -- Opinion of Reid & Priest
and 8 LLP, of Counsel to the
Company.
5(c) -- Opinion of Richards,
Layton & Finger, P.A.,
Special Delaware Counsel
to the Trust and the
Company.
12 -- Computation of Ratios of
Earnings to Fixed Charges
and Earnings to Combined
Fixed Charges and
Preferred Dividends of
the Company.
15 -- Letter of Deloitte &
Touche LLP regarding
unaudited condensed
interim financial
information.
23(a) -- Independent Auditors'
Consent.
23(b) -- Consents of Worsham,
Forsythe & Wooldridge,
L.L.P., Reid & Priest LLP
and Richards, Layton &
Finger, P.A., are
contained in Exhibits
5(a), 5(b) and 5(c),
respectively.
24 -- Power of Attorney (see
Pages II-5 and II-6).
25(a) -- Statement on Form T-1 of
The Bank of New York with
respect to the Indenture
of the Company.
25(b) -- Statement on Form T-1 of
The Bank of New York with
respect to the Amended
and Restated Trust
Agreement for the Trust.
25(c) -- Statement on Form T-1 of
The Bank of New York with
respect to the
Subordinated Indenture of
the Company.
25(d) -- Statement on Form T-1 of
The Bank of New York with
respect to the Guarantee
Agreement relating to the
Preferred Trust
Securities.
-----------------------------------------
*Incorporated herein by reference.
**To be filed by amendment.
Exhibit 1(a)
ENSERCH Corporation
Unsecured Debt Securities
UNDERWRITING AGREEMENT
______________________
[Date]
as Representatives of the Underwriters
named in Schedule I hereto
c/o
Ladies and Gentlemen:
1. Introduction. ENSERCH Corporation, a Texas
____________
corporation (the "Company"), proposes to issue and sell severally
to you (the "Underwriters"): the Company's unsecured debt
securities of the series designation, with the terms and in the
principal amount specified in Schedule I hereto (the "Debt
Securities").
2. Description of Debt Securities. The Company
______________________________
proposes to issue the Debt Securities under its Indenture (for
Unsecured Debt Securities), dated as of _________, ____, to The
Bank of New York, Trustee (the "Indenture Trustee"), said
Indenture, together with any amendments or supplements thereto,
being hereinafter referred to as the "Indenture".
3. Representations and Warranties of the Company.
_____________________________________________
The Company represents and warrants to the several Underwriters
that:
(a) It has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
Form S-3, including a prospectus, on ________, 199__
(Registration Nos. ____________ and 333- __________ -01) for
the registration of $275,000,000 aggregate amount of the
Company's unsecured debt securities ("Unsecured Debt
Securities") and the preferred trust securities ("Trust
Securities") of the Company's subsidiary, ENSERCH Capital I,
under the Securities Act of 1933, as amended (the
"Securities Act"). Such registration statement was declared
effective by the Commission on _____________. References
herein to the term "Registration Statement" as of any date
shall be deemed to refer to registration statement No.
______, as amended or supplemented to such date, including
all documents incorporated by reference therein as of such
date pursuant to Item 12 of Form S-3 ("Incorporated Docu-
ments"). References herein to the term "Prospectus" as of
any given date shall be deemed to refer to the prospectus
forming a part of registration statement Nos. ______ and
333- __________ -01 as amended or supplemented as of such
date (other than by amendments or supplements relating to
Unsecured Debt Securities or Trust Securities other than the
Securities), including all Incorporated Documents as of such
date and including a prospectus supplement relating to the
Debt Securities. References herein to the term "Effective
Date" shall be deemed to refer to the later of the time and
date registration statement No. ______ was declared
effective. The Company will not file any amendment to the
Registration Statement or supplement to the Prospectus on or
after the date of this Agreement and prior to the Closing
Date, as hereinafter defined, without prior notice to the
Underwriters, or to which Counsel for the Underwriters shall
reasonably object in writing. For the purposes of this
Agreement, any Incorporated Document filed with the
Commission on or after the date of this Agreement and prior
to the Closing Date, as hereinafter defined, shall be deemed
an amendment or supplement to the Registration Statement and
the Prospectus.
(b) On the Effective Date, the Registration Statement
and the Prospectus fully complied and at the Closing Date,
as hereinafter defined, the Registration Statement, the
Prospectus and the Indenture will fully comply in all
material respects with the applicable provisions of the
Securities Act, the Trust Indenture Act of 1939, as amended
("Trust Indenture Act"), and the applicable rules and regu-
lations of the Commission thereunder; on the Effective Date
the Registration Statement did not, and at the Closing Date,
as hereinafter defined, the Registration Statement will not,
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading; on
the Effective Date the Prospectus did not, and at the
Closing Date, as hereinafter defined, and on the date it is
filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 of the General Rules and Regulations of
the Securities Act ("Rule 424"), the Prospectus will not,
contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and on said dates the
Incorporated Documents, taken together as a whole, fully
complied or will comply in all material respects with the
applicable provisions of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the applicable
rules and regulations of the Commission thereunder, and,
when read together with the Prospectus on said dates did not
and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided that the foregoing representations and
warranties in this paragraph (b) shall not apply to
statements or omissions made in reliance upon information
furnished in writing to the Company by, or on behalf of, any
Underwriter for use in connection with the preparation of
the Registration Statement or the Prospectus or to any
statements in or omissions from the Statements of
Eligibility and Qualification under the Trust Indenture Act,
or amendments thereto, filed as exhibits to the Registration
Statement.
(c) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which the
Company is now a party.
4. Purchase and Sale. On the basis of the
_________________
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall sell
to each of the Underwriters, and each Underwriter shall purchase
from the Company, at the time and place herein specified,
severally and not jointly, the respective principal amount(s) of
the Debt Securities set forth opposite the name of such
Underwriter in Schedule II attached hereto, at the purchase price
or prices set forth in Schedule I hereto.
5. Time and Place of Closing. Delivery of the Debt
_________________________
Securities against payment therefor by wire transfer in federal
funds shall be made at the office of Reid & Priest LLP, 40 West
57th Street, New York, New York, at 10:00 A.M., New York Time, on
_____________, or at such other place, time and date as shall be
agreed upon in writing by the Company and you or established in
accordance with the following paragraph. The hour and date of
such delivery and payment are herein called the "Closing Date".
The Debt Securities shall be delivered to you for the respective
accounts of the Underwriters in fully registered form in such
denominations of $1,000 or any multiple thereof and registered in
such names as you shall reasonably request in writing not later
than the close of business on the second business day prior to
the Closing Date, or, to the extent not so requested, registered
in the names of the respective Underwriters in such authorized
denominations as the Company shall determine. The Company agrees
to make the Debt Securities available to you for checking
purposes not later than 10:00 A.M., New York Time, on the last
business day preceding the Closing Date at the office of Reid &
Priest LLP, 40 West 57th Street, New York, New York, 10019.
If any Underwriter shall fail or refuse (otherwise than
for some reason sufficient to justify, in accordance with the
terms hereof, the cancellation or termination of its obligations
hereunder) to purchase and pay for the principal amount(s) of the
Debt Securities that such Underwriter has agreed to purchase and
pay for hereunder, the Company shall immediately give notice to
the other Underwriters of the default of such Underwriter, and
the other Underwriters shall have the right within 24 hours after
the receipt of such notice to determine to purchase, or to
procure one or more others, who are members of the National
Association of Securities Dealers, Inc. ("NASD") (or, if not
members of the NASD, who are not eligible for membership in the
NASD and who agree (i) to make no sales within the United States,
its territories or its possessions or to persons who are citizens
thereof or residents therein and (ii) in making sales to comply
with the NASD's Rules of Fair Practice) and satisfactory to the
Company, to purchase, upon the terms herein set forth, the
principal amount(s) of the Debt Securities that the defaulting
Underwriter had agreed to purchase. If any non-defaulting
Underwriter or Underwriters shall determine to exercise such
right, such Underwriter or Underwriters shall give written notice
to the Company of the determination in that regard within 24
hours after receipt of notice of any such default, and thereupon
the Closing Date shall be postponed for such period, not
exceeding three business days, as the Company shall determine.
If in the event of such a default no non-defaulting Underwriter
shall give such notice then this Agreement may be terminated by
the Company, upon like notice given to the non-defaulting
Underwriters, within a further period of 24 hours. If in such
case the Company shall not elect to terminate this Agreement it
shall have the right, irrespective of such default:
(a) to require such non-defaulting Underwriters to
purchase and pay for the respective principal amounts of the
Debt Securities that they had severally agreed to purchase
hereunder as hereinabove provided and, in addition, the
principal amounts of the Debt Securities that the defaulting
Underwriter shall have so failed to purchase up to a
principal amount thereof equal to one-ninth (1/9) of the
respective principal amounts of the Debt Securities that
such non-defaulting Underwriters have otherwise agreed to
purchase hereunder, and/or
(b) to procure one or more persons, who are members of
the NASD (or, if not members of the NASD, who are not
eligible for membership in the NASD and who agree (i) to
make no sales within the United States, its territories or
its possessions or to persons who are citizens thereof or
residents therein and (ii) in making sales to comply with
the NASD's Rules of Fair Practice), to purchase, upon the
terms herein set forth, either all or a part of the princi-
pal amount(s) of the Debt Securities that such defaulting
Underwriter had agreed to purchase or that portion thereof
that the remaining Underwriters shall not be obligated to
purchase pursuant to the foregoing clause (a).
In the event the Company shall exercise its rights under (a)
and/or (b) above, the Company shall give written notice thereof
to the non-defaulting Underwriters within such further period of
24 hours, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company
shall determine.
In the computation of any period of 24 hours referred
to in this Section 5, there shall be excluded a period of 24
hours in respect of each Saturday, Sunday or legal holiday that
would otherwise be included in such period of time.
Any action taken by the Company under this Section 5
shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
Termination by the Company under this Section 5 shall be without
any liability on the part of the Company or any non-defaulting
Underwriter, except as otherwise provided in Sections 6(g) and 9
hereof.
6. Covenants of the Company. The Company agrees
________________________
that:
(a) It will promptly deliver to each of you a signed
copy of the Registration Statement as originally filed or,
to the extent a signed copy is not available, a conformed
copy, certified by an officer of the Company to be in the
form as originally filed, including all Incorporated
Documents and exhibits and of all amendments thereto.
(b) It will deliver to you, as soon as practicable
after the date hereof, as many copies of the Prospectus as
of such date as you may reasonably request.
(c) It will cause the Prospectus to be filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 as soon as practicable and advise you of the issuance of
any stop order under the Securities Act with respect to the
Registration Statement or the institution of any proceedings
therefor of which the Company shall have received notice.
The Company will use its best efforts to prevent the
issuance of any such stop order and to secure the prompt
removal thereof if issued.
(d) If, during such period of time (not exceeding nine
months) after the Prospectus has been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 as in the opinion of Counsel for the Underwriters a
prospectus covering the Debt Securities is required by law
to be delivered in connection with sales by an Underwriter
or dealer, any event relating to or affecting the Company or
of which the Company shall be advised in writing by you
shall occur that in the Company's reasonable opinion should
be set forth in a supplement to, or an amendment of, the
Prospectus in order to make the Prospectus not misleading in
the light of the circumstances when it is delivered to a
purchaser, the Company will, at its expense, amend or
supplement the Prospectus by either (i) preparing and
furnishing to you at the Company's expense a reasonable
number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus or (ii) making an
appropriate filing pursuant to Section 13 of the Exchange
Act, which will supplement or amend the Prospectus so that,
as supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in
the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading; provided that
should such event relate solely to the activities of any of
the Underwriters, then the Underwriters shall assume the
expense of preparing and furnishing any such amendment or
supplement. In case any Underwriter is required to deliver
a prospectus after the expiration of nine months from the
date the Prospectus is filed with, or transmitted for filing
to, the Commission pursuant to Rule 424, the Company, upon
your request, will furnish to you, at the expense of such
Underwriter, a reasonable quantity of a supplemental
prospectus or supplements to the Prospectus complying with
Section 10(a) of the Securities Act.
(e) It will make generally available to its security
holders, as soon as practicable, an earnings statement
(which need not be audited) covering a period of at least
twelve months beginning not earlier than the first day of
the month next succeeding the month in which occurred the
effective date of the Registration Statement as defined in
Rule 158 under the Securities Act.
(f) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Debt Securities for offer and sale under the blue-sky laws
of such jurisdictions as you may designate, provided that
the Company shall not be required to qualify as a foreign
corporation or dealer in securities, to file any consents to
service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be
unduly burdensome.
(g) It will, except as herein provided, pay all
expenses and taxes (except transfer taxes) in connection
with (i) the preparation and filing by it of the
Registration Statement, (ii) the issuance and delivery of
the Debt Securities as provided in Section 5 hereof, (iii)
the qualification of the Debt Securities under blue-sky laws
[(including counsel fees not to exceed $7,500)], and (iv)
the printing and delivery to the Underwriters of reasonable
quantities of the Registration Statement and, except as
provided in Section 6(d) hereof, of the Prospectus. The
Company shall not, however, be required to pay any amount
for any expenses of yours or any of the Underwriters, except
that, if this Agreement shall be terminated in accordance
with the provisions of Section 7, 8 or 10 hereof, the
Company will reimburse you for the fees and disbursements of
Counsel for the Underwriters, whose fees and disbursements
the Underwriters agree to pay in any other event, and will
reimburse the Underwriters for their reasonable out-of-
pocket expenses, in an aggregate amount not exceeding
$5,000, incurred in contemplation of the performance of this
Agreement. The Company shall not in any event be liable to
any of the several Underwriters for damages on account of
loss of anticipated profits.
7. Conditions of Underwriters' Obligations. The
_______________________________________
obligations of the Underwriters to purchase and pay for the Debt
Securities shall be subject to the accuracy of the
representations and warranties made herein on the part of the
Company, to the performance by the Company of its obligations to
be performed hereunder prior to the Closing Date, and to the
following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 prior to 6:00 P.M., New York Time, on the second
business day after the date of this Agreement, or such other
time and date as may be approved by you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date; and you
shall have received a certificate, dated the Closing Date
and signed by an officer of the Company, to the effect that
no such stop order is in effect and that no proceedings for
such purpose are pending before, or to the knowledge of the
Company threatened by, the Commission.
(c) On the Closing Date, you shall have received from
Worsham, Forsythe & Wooldridge, L.L.P., General Counsel for
the Company, Reid & Priest LLP, of counsel for the Company,
and Winthrop, Stimson, Putnam & Roberts, Counsel for the
Underwriters, opinions in substantially the form and
substance prescribed in Schedules III, IV and V hereto (i)
with such changes therein as may be agreed upon by the
Company and you, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the
Debt Securities shall be supplemented or amended after the
Prospectus shall have been filed with, or transmitted for
filing to, the Commission pursuant to Rule 424, with any
changes therein necessary to reflect such supplementation or
amendment.
(d) On and as of the date hereof you shall have
received from Deloitte & Touche LLP a letter to the effect
that (i) they are independent certified public accountants
with respect to the Company, within the meaning of the
Securities Act and the applicable published rules and
regulations thereunder, (ii) in their opinion, the financial
statements audited by them and included or incorporated by
reference in the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act and the published rules and
regulations thereunder, (iii) on the basis of a reading of
the unaudited amounts of operating revenues and net income
included or incorporated by reference in the Prospectus and
the related financial statements from which these amounts
were derived, the latest available unaudited financial
statements of the Company and the minute books of the
Company and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it
being understood that the foregoing procedures do not
constitute an audit made in accordance with generally
accepted auditing standards and would not necessarily reveal
matters of significance with respect to the comments made in
such letter, and accordingly that Deloitte & Touche LLP
makes no representation as to the sufficiency of such
procedures for the several Underwriters' purposes), nothing
has come to their attention that caused them to believe that
(A) the unaudited financial statements incorporated by
reference in the Prospectus were not determined in accor-
dance with generally accepted accounting principles applied
on a basis substantially consistent with that of the
corresponding amounts in the latest available audited
financial statements, (B) the unaudited amounts of operating
revenues and net income of the Company included or
incorporated by reference in the Prospectus were not
determined on a basis substantially consistent with that of
the corresponding amounts in the audited statements of
income incorporated by reference in the Prospectus, (C) for
the twelve months ended as of the date of the latest
available financial statements of the Company, there were
any decreases in operating revenues or net income as
compared with the comparable period of the preceding year,
and (D) at a specified date not more than seven days prior
to the date of such letter, there was any change in the
capital stock of the Company, short-term bank loans,
commercial paper, notes payable to Texas Utilities Company
or long-term debt of the Company or decrease in its net
assets, in each case as compared with amounts shown in the
most recent balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
that the Prospectus discloses have occurred or may occur or
which are occasioned by the declaration of a regular
quarterly dividend or the acquisition of long-term debt for
sinking fund purposes, or that are described in such letter,
and (iv) they have compared the dollar amounts (or
percentages or ratios derived from such dollar amounts) and
other financial information included or incorporated by
reference in the Registration Statement and the Prospectus
as reasonably requested by you (in each case to the extent
that such dollar amounts, percentages and other financial
information are derived from the general accounting records
of the Company subject to the internal controls of the
Company's accounting system or are derived indirectly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter, and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
(e) Since the most recent dates as of which in-
formation is given in the Registration Statement or the
Prospectus there shall not have been any material adverse
change in the business, property or financial condition of
the Company and, since such dates, there shall not have been
any material transaction entered into by the Company, in
each case other than transactions in the ordinary course of
business and transactions contemplated by the Registration
Statement or Prospectus and at the Closing Date you shall
have received a certificate to such effect dated the Closing
Date and signed by an officer of the Company.
(f) All legal proceedings to be taken in connection
with the issuance and sale of the Debt Securities shall have
been satisfactory in form and substance to Counsel for the
Underwriters.
In case any of the conditions specified above in this
Section 7 shall not have been fulfilled, this Agreement may be
terminated with the consent of Underwriters that have agreed to
purchase in the aggregate 50% or more of the aggregate principal
amount of the Debt Securities and upon notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party except as otherwise provided in Sections
6(g) and 9 hereof.
8. Conditions of Company's Obligations. The
___________________________________
obligation of the Company to deliver the Debt Securities shall be
subject to the conditions that the Prospectus shall have been
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424 prior to 6:00 P.M., New York Time, on the second
business day after the date of this Agreement or such other time
and date as may be approved by the Company, and no stop order
suspending the effectiveness of the Registration Statement shall
be in effect at the Closing Date and no proceedings for that
purpose shall be pending before, or threatened by, the Commission
at the Closing Date. In case these conditions shall not have
been fulfilled, this Agreement may be terminated by the Company
upon notice thereof to you. Any such termination shall be
without liability of any party to any other party except as
otherwise provided in Sections 6(g) and 9 hereof.
9. Indemnification.
_______________
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the
Securities Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act or
any other statute or common law and shall reimburse each
such Underwriter and controlling person for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or
prospectus prior to the Effective Date, or in the
Registration Statement or the Prospectus, or the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading; provided, however, that the
indemnity agreement contained in this Section 9 shall not
apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission
was made in reliance upon information furnished in writing
to the Company by any Underwriter, through you or otherwise,
for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement to either thereof, or arising out of, or based
upon, statements in or omissions from that part of the
Registration Statement that shall constitute the Statements
of Eligibility and Qualification under the Trust Indenture
Act of any Trustee with respect to any indenture qualified
pursuant to the Registration Statement; and provided
further, that the indemnity agreement contained in this
Section 9 shall not inure to the benefit of any Underwriter
(or of any person controlling such Underwriter) on account
of any such losses, claims, damages, liabilities, expenses
or actions arising from the sale of the Debt Securities to
any person if a copy of the Prospectus (exclusive of the
Incorporated Documents) shall not have been given or sent to
such person by or on behalf of such Underwriter with or
prior to the written confirmation of the sale involved
unless, with respect to the delivery of any amendment or
supplement to the Prospectus, the alleged omission or
alleged untrue statement was not corrected in such amendment
or supplement at the time of such written confirmation. The
indemnity agreement of the Company contained in this Section
9 and the representations and warranties of the Company con-
tained in Section 3 hereof shall remain operative and in
full force and effect regardless of any termination of this
Agreement or of any investigation made by or on behalf of
any Underwriter or any such controlling person, and shall
survive the delivery of the Debt Securities.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its officers and directors, and each
person who controls the Company within the meaning of
Section 15 of the Securities Act, from and against any and
all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject
under the Securities Act or any other statute or common law
and shall reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or
liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon
information furnished in writing to the Company by or on
behalf of such Underwriter, through you or otherwise, for
use in connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement
to either thereof. Each Underwriter hereby furnishes to the
Company in writing expressly for use in the Prospectus (i)
the statements relating to offerings by the Underwriters on
the cover page, (ii) the statements in the first paragraph
on page ___ concerning stabilization and other transactions
by the Underwriters, and (iii) under "Underwriters," the
list of underwriters and statements in the _______,
________, and _____ paragraphs. The indemnity agreement of
the respective Underwriters contained in this Section 9
shall remain operative and in full force and effect
regardless of any termination of this Agreement or of any
investigation made by or on behalf of the Company, its
directors or its officers, any such Underwriter, or any such
controlling person, and shall survive the delivery of the
Debt Securities.
(c) The Company and the several Underwriters each
shall, upon the receipt of notice of the commencement of any
action against it or any person controlling it as aforesaid,
in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, promptly give
written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought hereunder,
but the omission so to notify such indemnifying party or
parties of any such action shall not relieve such
indemnifying party or parties from any liability that it or
they may have to the indemnified party otherwise than on
account of such indemnity agreement. In case such notice of
any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the
defense, or, if it so elects, to assume (in conjunction with
any other indemnifying parties) the defense of such action,
in which event such defense shall be conducted by counsel
chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall
be defendant or defendants in such action, and such
defendant or defendants shall bear the fees and expenses of
any additional counsel retained by them; but if the
indemnifying party shall elect not to assume the defense of
such action, such indemnifying party will reimburse such
indemnified party or parties for the reasonable fees and
expenses of any counsel retained by them; provided, however,
if the defendants in any such action include both the
indemnified party and the indemnifying party and counsel for
the indemnifying party shall have reasonably concluded that
there may be a conflict of interest involved in the
representation by such counsel of both the indemnifying
party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel,
satisfactory to the indemnifying party, to participate in
the defense of such action on behalf of such indemnified
party or parties (it being understood, however, that the
indemnifying party shall not be liable for the expenses of
more than one separate counsel representing the indemnified
parties who are parties to such action).
(d) If the indemnification provided for in sub-
paragraph (a) or (b) above shall be unenforceable under
applicable law by an indemnified party, each indemnifying
party agrees to contribute to such indemnified party with
respect to any and all losses, claims, damages, liabilities
and expenses for which each such indemnification provided
for in subparagraph (a) or (b) above shall be unenforceable,
in such proportion as shall be appropriate to reflect the
relative fault of each indemnifying party on the one hand
and the indemnified party on the other in connection with
the statements or omissions that have resulted in such
losses, claims, damages, liabilities and expenses, as well
as any other relevant equitable considerations; provided,
however, that no indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from
any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the
indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company
and each of the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subparagraph
(d) were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to
above.
10. Termination. This Agreement may be terminated, at
___________
any time prior to the Closing Date, by you with the consent of
the Underwriters that have agreed to purchase in the aggregate
50% or more of the aggregate principal amount of the Securities
if (a) after the date hereof and at or prior to the Closing Date
there shall have occurred any general suspension of trading in
securities on the New York Stock Exchange or there shall have
been established by the New York Stock Exchange or by the Com-
mission or by any federal or state agency or by the decision of
any court, any general limitation on prices for such trading or
any general restrictions on the distribution of securities, or a
general banking moratorium declared by New York or federal
authorities, or (b) there shall have occurred any new material
(i) outbreak of hostilities or (ii) other national or
international calamity or crisis, including, but not limited to,
an escalation of hostilities that existed prior to the date of
this Agreement, and the effect of any such event specified in
clause (a) or (b) above on the financial markets of the United
States shall be such as to make it impracticable, in the
reasonable judgment of the Underwriters, for the Underwriters to
enforce contracts for the sale of the Debt Securities. This
Agreement may also be terminated at any time prior to the Closing
Date by you with the consent of the Underwriters that have agreed
to purchase in the aggregate 50% or more of the aggregate
principal amount of the Debt Securities, if, in your reasonable
judgment, the subject matter of any amendment or supplement to
the Registration Statement or the Prospectus (other than an
amendment or supplement relating solely to the activity of any
Underwriter or Underwriters) prepared and issued by the Company
after the effectiveness of this Agreement shall have disclosed a
material adverse change in the business, property or financial
condition of the Company that has materially impaired the
marketability of the Debt Securities. Any termination hereof
pursuant to this Section 10 shall be without liability of any
party to any other party except as otherwise provided in Sections
6(g) and 9 hereof.
11. Miscellaneous. THE VALIDITY AND INTERPRETATION OF
_____________
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK. This Agreement shall inure to the benefit of the Company,
the several Underwriters and, with respect to the provisions of
Section 9 hereof, each director, officer and controlling person
referred to in said Section 9, and their respective successors.
Nothing herein is intended or shall be construed to give to any
other person, firm or corporation any legal or equitable right,
remedy or claim under or in respect of any provision in this
Agreement. The term "successor" as used herein shall not include
any purchaser, as such purchaser, of any of the Debt Securities
from any of the several Underwriters.
12. Notices. All communications hereunder shall be in
_______
writing, and, if to the Underwriters, shall be mailed or
delivered to you at the address set forth above, or, if to the
Company, shall be mailed or delivered to it at 1601 Bryan Street,
Dallas, Texas 75201, Attention: Treasurer.
<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please indicate your acceptance
thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding
agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
ENSERCH CORPORATION
By ____________________________
Accepted and delivered as of
the date first above written
BY
By _______________________
<PAGE>
SCHEDULE I
__________
Underwriting Agreement dated:
Underwriters:
Debt Securities:
Designation:
Principal Amount:
Date of Maturity:
Interest Rate:
Purchase Price:
Public Offering Price:
<PAGE>
SCHEDULE II
___________
ENSERCH Corporation
DEBT SECURITIES
Name Principal Amount
____ ________________
<PAGE>
SCHEDULE III
[Letterhead of Worsham, Forsythe & Wooldridge, L.L.P.]
[Date]
as Underwriters named in the
Underwriting Agreement, dated,
between ENSERCH CORPORATION
and such Underwriters
c/o
Ladies and Gentlemen:
We have acted as General Counsel to ENSERCH Corporation
(the "Company") in connection with the issuance and sale of
$__________ aggregate principal amount of its _____________ (the
"Debt Securities") pursuant to the Underwriting Agreement dated
__________, ____ among the Company and you (the "Underwriting
Agreement").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the
Indenture and the Debt Securities. We have also examined such
other documents and satisfied ourselves as to such other matters
as we have deemed necessary as a basis for the conclusions of law
contained in the opinions enumerated below. We have relied as to
various questions of fact upon the representations and warranties
of the Company contained in the Underwriting Agreement and, where
deemed appropriate, on certificates of public officials. We have
relied upon a certificate of the Indenture Trustee as to the
authentication of the Debt Securities. In our examination we
have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted
to us as photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Company is a public utility corporation duly
authorized by its articles of incorporation, as amended, to
conduct the business that it is now conducting, is subject, as to
rates and services, to the jurisdiction of certain authorities,
as set forth in the Prospectus, and holds valid and subsisting
franchises, licenses and permits authorizing it to carry on the
utility business in which it is engaged.
2. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
3. The Indenture has been duly qualified under the
Trust Indenture Act.
4. The Debt Securities and the Indenture have been
duly authorized, executed and delivered by the Company, the Debt
Securities are entitled to the benefits of the Indenture, and the
Debt Securities and the Indenture are legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and
of general principles of equity.
5. The statements made in the Prospectus under the
captions "Description of the Debt Securities" and "Certain Terms
of the __________", insofar as they purport to constitute
summaries of the terms of the documents referred to therein,
constitute accurate summaries of the terms of such documents in
all material respects.
6. Other than as stated, referred to or incorporated
by reference in the Registration Statement and the Prospectus,
there are no material pending legal proceedings to which the
Company is a party or of which property of the Company is the
subject which depart from the ordinary routine litigation
incident to the kind of business conducted by the Company, and to
our best knowledge no such proceedings are contemplated.
7. The Registration Statement, as of the Effective
Date, and the Prospectus, at the time it was filed with (or
transmitted for filing to) the Commission pursuant to Rule 424
under the Securities Act, (except for financial statements and
schedules and financial and statistical data as to which we do
not express any belief and except for those parts of the
Registration Statement that constitute the Forms T-1) complied as
to form in all material respects with the applicable requirements
of the Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated
Documents (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to
which we do not express any belief), at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
and the Registration Statement has become and is effective under
the Securities Act and, to our best knowledge, no proceedings for
a stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act.
8. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debt Securities.
In the course of the preparation of the information
relating to the Company contained in the Registration Statement
and the Prospectus (including the documents incorporated therein
by reference), we had discussions with certain of its officers
and representatives, with other counsel for the Company, with
Deloitte & Touche LLP, the independent certified public
accountants who audited certain of the financial statements
contained in the Registration Statement and the Prospectus and
with certain of your officers and employees and your counsel, but
we made no independent verification of the accuracy or
completeness of the representations and statements made to us by
the Company or the information included by the Company in the
Registration Statement and the Prospectus and take no
responsibility therefor except as set forth in paragraph 5 above.
However, our examination of the information relating to the
Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except for financial
statements and schedules and financial and statistical data as to
which we do not express any belief and except for those parts of
the Registration Statement that constitute the Forms T-1) (i) the
Registration Statement, as of the Effective Date, included an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) the Prospectus, at
the time it was filed with (or transmitted for filing to) the
Commission pursuant to Rule 424 under the Securities Act,
included, or on the date hereof includes, an untrue statement of
a material fact or on such dates omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
We are members of the State Bar of Texas and do not
hold ourselves out as experts in the laws of the State of New
York. As to all matters of New York law, we have, with your
consent, relied upon the opinion of Reid & Priest LLP, New York,
New York, of Counsel to the Company.
Very truly yours,
WORSHAM, FORSYTHE &
WOOLDRIDGE, L.L.P.
By:_______________________
A Partner
<PAGE>
SCHEDULE IV
[Letterhead of Reid & Priest LLP]
[Date]
as Underwriters named in the
Underwriting Agreement, dated,
between ENSERCH Corporation
and such Underwriters
c/o
Ladies and Gentlemen:
We have acted as counsel to ENSERCH Corporation (the
"Company") in connection with the issuance and sale of
$_____________ aggregate principal amount of its __________ (the
"Debt Securities") pursuant to the Underwriting Agreement dated
______________ among the Company and you (the "Underwriting
Agreement").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the
Indenture and the Debt Securities. We have also examined such
other documents and satisfied ourselves as to such other matters
as we have deemed necessary as a basis for the conclusions of law
contained in the opinions expressed below. We have relied as to
various questions of fact upon the representations and warranties
of the Company contained in the Underwriting Agreement and, where
we deemed appropriate, on certificates of public officials. We
have relied upon a certificate of the Indenture Trustee as to the
authentication of the Debt Securities. In our examination we
have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted
to us as photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
2. The Indenture has been duly qualified under the
Trust Indenture Act;
3. The Debt Securities and the Indenture have been
duly authorized, executed and delivered by the Company, the Debt
Securities are entitled to the benefits of the Indenture, and the
Debt Securities and the Indenture are legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and
of general principles of equity;
4. The statements made in the Prospectus under the
captions "Description of the Debt Securities" and "Certain Terms
of the _________", insofar as they purport to constitute
summaries of the terms of the documents referred to therein,
constitute accurate summaries of the terms of such documents in
all material respects;
5. The Registration Statement, as of the Effective
Date, and the Prospectus, at the time it was filed with the
Commission pursuant to Rule 424 under the Securities Act, (except
as to the financial statements and schedules and other financial
and statistical data contained therein as to which we do not
express any belief and except for those parts of the Registration
Statement that constitute the Forms T-1) complied as to form in
all material respects with the applicable requirements of the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated
Documents (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to
which we do not express any belief), at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
and the Registration Statement has become and is effective under
the Securities Act and, to our best knowledge, no proceedings for
a stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act; and
6. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debt Securities.
In the course of the preparation of the information
relating to the Company contained in the Registration Statement
and the Prospectus (including the documents incorporated therein
by reference) we had discussions with certain of its officers and
representatives, with other counsel for the Company, with
Deloitte & Touche LLP, the independent certified public
accountants who audited certain of the financial statements
contained in the Registration Statement and the Prospectus and
with certain of your officers and employees and your counsel, but
we made no independent verification of the accuracy or
completeness of the representations and statements made to us by
the Company or the information included by the Company in the
Registration Statement and the Prospectus and take no
responsibility therefor except as set forth in paragraph 4 above.
However, our examination of the information relating to the
Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except as to the financial
statements and schedules and other financial and statistical data
contained therein, as to which we do not express any belief, and
except for those parts of the Registration Statement that
constitute the Forms T-1) (i) the Registration Statement, as of
the Effective Date, included an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or (ii) the Prospectus, at the time it was filed with
the Commission pursuant to Rule 424 under the Securities Act,
included, or on the date hereof includes, an untrue statement of
a material fact or on such dates omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
We are members of the New York Bar and do not hold
ourselves out as experts in the laws of the State of Texas. As
to all matters of Texas law, we have, with your consent, relied
upon the opinion of Worsham, Forsythe & Wooldridge, L.L.P.,
Dallas, Texas, General Counsel for the Company. We believe that
you and we are justified in relying on such opinion.
Very truly yours,
REID & PRIEST LLP
<PAGE>
SCHEDULE V
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[Date]
as Underwriters named in the
Underwriting Agreement, dated
, between ENSERCH
Corporation and such Underwriters
c/o
Ladies and Gentlemen:
We have acted as counsel to you in connection with your
purchase from ENSERCH Corporation (the "Company") of $__________
aggregate principal amount of its _______________ (the "Debt
Securities") pursuant to the Underwriting Agreement, dated
______________, between you and the Company (the "Underwriting
Agreement").
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of the State of Texas. We
have, with your consent, relied upon an opinion of even date
herewith addressed to you by Worsham, Forsythe & Wooldridge,
L.L.P., of Dallas, Texas, General Counsel for the Company, as to
the matters covered in such opinion relating to Texas law. We
have reviewed such opinion and believe that it is satisfactory
and that you and we are justified in relying thereon. We have
also reviewed the opinion of Reid & Priest LLP required by
paragraph (c) of Section 7 of the Underwriting Agreement, and we
believe such opinion to be satisfactory.
We have, in addition, examined the documents described
in the list of closing papers as having been delivered to you at
the closing and such other documents and satisfied ourselves as
to such other matters as we have deemed necessary in order to
enable us to express this opinion. We have not examined the Debt
Securities, except specimens thereof, and have relied upon a
certificate of the Trustee as to the authentication thereof. As
to various questions of fact material to this opinion, we have
relied upon representations of the Company and statements in the
Registration Statement hereinafter mentioned. In such
examination we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us and the
genuineness and conformity to original documents of documents
submitted to us as certified or photostatic copies.
"Registration Statement", "Prospectus" and "Effective Date" as
used herein have the same meanings as the same words in the
Underwriting Agreement.
Based on the foregoing, we are of the opinion that:
1. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
2. The Indenture is duly qualified under the 1939
Act.
3. The Debt Securities and the Indenture have been
duly authorized, executed and delivered by the Company, the
Debt Securities are entitled to the benefits of the
Indenture, and the Debt Securities and the Indenture are
legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their
terms, subject to the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, receivership,
moratorium and other laws affecting the rights and remedies
of creditors generally and of general principles of equity.
4. The statements made in the Prospectus under the
captions "Description of the Debt Securities" and "Certain
Terms of the __________", insofar as they purport to
constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents
in all material respects.
5. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the blue-sky laws of any jurisdiction) is
legally required for the authorization of the issue and sale
by the Company of the Debt Securities as contemplated in the
Underwriting Agreement.
6. The Registration Statement, at the Effective Date
thereof, and the Prospectus, at the time it was filed with
or transmitted for filing to the Commission pursuant to Rule
424 (except in each case as to financial statements and
schedules and other financial and statistical data contained
or incorporated by reference therein and except for those
parts of the Registration Statement that constitute the
Forms T-1, upon which we express no opinion), complied as to
form in all material respects with the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and the information included in the Registration
Statement and the Prospectus and take no responsibility therefor,
except insofar as such statements relate to us and as set forth
in paragraph 4 above. In the course of the preparation by the
Company of the Registration Statement and the Prospectus, we have
had discussions with certain of its officers and representatives,
with counsel for the Company, with Deloitte & Touche LLP, the
independent public accountants who audited certain of the
financial statements incorporated by reference in the
Registration Statement and the Prospectus, and with certain of
your representatives. Our examination of the Registration
Statement and the Prospectus and our discussions did not disclose
to us any information which gives us reason to believe that at
the Effective Date the Registration Statement contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the time it was
filed with or transmitted for filing to the Commission pursuant
to Rule 424, or at the date hereof, included or includes any
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data contained or incorporated by reference in the Registration
Statement or the Prospectus or as to those parts of the
Registration Statement that constitute the Forms T-1.
This opinion is given to you solely for your use in
connection with the Underwriting Agreement and the transactions
contemplated thereunder and may not be relied upon by any other
person or for any other purpose.
Very truly yours,
WINTHROP, STIMSON, PUTNAM
& ROBERTS
Exhibit 1(b)
ENSERCH CAPITAL I
_____% PREFERRED TRUST SECURITIES
UNDERWRITING AGREEMENT
______________________
[Date]
_________________________
_________________________
_________________________
_________________________
_________________________
_________________________
_________________________
Ladies and Gentlemen:
1. Introduction.
____________
ENSERCH Corporation, a Texas corporation (the "Company"), and
its financing subsidiary, ENSERCH Capital I, a Delaware business
trust (the "Trust", hereinafter together with the Company, the
"Offerors") propose for the Trust to issue and sell severally to
the underwriters named in Schedule II hereto (the
"Underwriters"), the Trust's ______% Preferred Trust
Securities of the series designation, with the terms and in the
liquidation preference amount specified in Schedule I hereto (the
"Preferred Securities").
2. Description of Preferred Securities.
___________________________________
The Offerors propose for the Trust to issue the Preferred
Securities pursuant to an Amended and Restated Trust Agreement,
to be dated as of ____________, ____, among The Bank of New York,
as Property Trustee, The Bank of New York (Delaware) as Delaware
Trustee and certain employees of the Company or one or of its
affiliates as Administrative Trustees, and holders, from time to
time, of undivided beneficial interests in the assets of the
Trust, in substantially the form heretofore delivered to you,
as representatives of the Underwriters, said Agreement being
hereinafter referred to as the "Trust Agreement". In connection
with the issuance of the Preferred Securities, the Company
proposes (i) to issue its ______% Junior Subordinated Debentures,
Series [__] (the "Debentures") pursuant to an Indenture, dated as
of _________________, ____, between the Company and The Bank of
New York, as trustee (the "Indenture") and (ii) to issue a
guarantee of the Preferred Securities to the extent described in
the Prospectus (as defined below) (the "Guarantee").
3. Representations and Warranties of the Offerors.
______________________________________________
The Offerors represent and warrant to the several Underwriters
that:
(a) The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3, including a prospectus, on January
__, 1998 (Registration Nos. 333-________ and 333-_____-01)
for the registration under the Securities Act of 1933, as
amended (the "Securities Act") of an aggregate of
$275,000,000 of unsecured debt securities ("Debt
Securities") of the Company and Preferred Securities of the
Trust. With respect to any issuance of Preferred Securities
such registration statement also registers under the
Securities Act, the Debentures, the Guarantee and other
obligations of the Company. Such registration statement was
declared effective by the Commission on __________________,
1998. References herein to the term "Registration State-
ment" as of any date shall be deemed to refer to
registration statement Nos. 333-_____ and 333-_____-01, as
amended or supplemented to such date, including all
documents incorporated by reference therein as of such date
pursuant to Item 12 of Form S-3 ("Incorporated Documents").
References herein to the term "Prospectus" as of any given
date shall be deemed to refer to the prospectus forming a
part of registration statement Nos. 333-______ and 333-
______-01, as amended or supplemented as of such date (other
than by amendments or supplements relating to Debt
Securities), including all Incorporated Documents as of such
date and including the prospectus supplement with respect to
the Preferred Securities, the Debentures and the Guarantee,
as amended and supplemented as of such date. References
herein to the term "Effective Date" shall be deemed to refer
to the time and date registration statement Nos. 333-_____
and 333-_____-01 was declared effective. The Company will
not file any amendment to the Registration Statement or
supplement to the Prospectus after the date of this
Agreement and prior to the Closing Date, as hereinafter
defined, without prior notice to the Underwriters, or to
which Counsel for the Underwriters shall reasonably object
in writing. For the purposes of this Agreement, any Incor-
porated Document filed with the Commission on a date prior
to the Closing Date, as hereinafter defined, shall be deemed
an amendment or supplement to the Registration Statement and
the Prospectus.
(b) On the Effective Date, the Registration Statement
and the Prospectus fully complied and at the Closing Date,
as hereinafter defined, the Registration Statement, the
Prospectus, the Trust Agreement, the Indenture and the
Guarantee will fully comply in all material respects with
the applicable provisions of the Securities Act, the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act"),
and the applicable rules and regulations of the Commission
thereunder; on the Effective Date the Registration Statement
did not, and at the Closing Date, as hereinafter defined,
the Registration Statement will not, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; on the Effective Date the
Prospectus did not, and at the Closing Date, as hereinafter
defined, and on the date it is filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 of the
General Rules and Regulations of the Securities Act ("Rule
424"), the Prospectus will not, contain an untrue statement
of a material fact or omit to state a material fact neces-
sary in order to make the statements therein, in the light
of the circumstances under which they were made, not
misleading; and on said dates the Incorporated Documents,
taken together as a whole, fully complied or will comply in
all material respects with the applicable provisions of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable rules and regulations of the
Commission thereunder, and, when read together with the
Prospectus on said dates, did not and will not contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that
the foregoing representations and warranties in this
paragraph (b) shall not apply to statements or omissions
made in reliance upon information furnished in writing to
the Company by, or on behalf of, any Underwriter for use in
connection with the preparation of the Registration
Statement or the Prospectus or to any statements in or
omissions from the Statement of Eligibility and
Qualification under the Trust Indenture Act, or amendments
thereto, of the trustee under each of the Trust Agreement,
the Indenture and the Guarantee.
(c) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which the
Company is now a party.
4. Purchase and Sale.
_________________
(a) On the basis of the representations and warranties
herein contained, and subject to the terms and conditions
herein set forth, the Trust shall sell to each of the
Underwriters, and each Underwriter shall purchase from the
Trust, at the time and place herein specified, severally and
not jointly, the respective liquidation preference amount of
the Preferred Securities set forth opposite the name of such
Underwriter in Schedule II attached hereto, at the purchase
price or prices set forth in Schedule I hereto.
(b) The Company shall pay to the Underwriters a
commission equal to ____% of the aggregate liquidation
preference amount of the Preferred Securities.
5. Time and Place of Closing.
_________________________
Delivery of the Preferred Securities against payment therefor
by certified or official bank check or checks payable to the
Company or pursuant to its order in New York Clearing House funds
shall be made at the offices of Reid & Priest LLP, 40 West 57th
Street, New York, New York, at 10:00 A.M., New York Time, on
________________, or at such other place, time and date as shall
be agreed upon in writing by the Offerors and you or established
in accordance with the following paragraph. The hour and date of
such delivery and payment are herein called the "Closing Date".
The Preferred Securities shall be delivered to you for the
respective accounts of the Underwriters in fully registered form
in such denominations of $1,000 or any multiple thereof and
registered in such names as you shall reasonably request in
writing not later than 10:00 A.M. on the business day preceding
the Closing Date, or, to the extent not so requested, registered
in the names of the respective Underwriters in such authorized
denominations as the Company shall determine. The Trust agrees
to make the Preferred Securities available to you for checking
purposes not later than 2:00 P.M., New York Time, on the business
day preceding the Closing Date at the office of The Bank of New
York, 101 Barclay Street, 7th Floor East, New York, New York.
If any Underwriter shall fail or refuse (otherwise than
for some reason sufficient to justify, in accordance with the
terms hereof, the cancellation or termination of its obligations
hereunder) to purchase and pay for the liquidation preference
amount of the Preferred Securities which such Underwriter has
agreed to purchase and pay for hereunder, the Company shall
immediately give notice to the other Underwriters of the default
of such Underwriter, and the other Underwriters shall have the
right within 24 hours after the receipt of such notice to
determine to purchase, or to procure one or more others, who are
members of the National Association of Securities Dealers, Inc.
("NASD") (or, if not members of the NASD, who are not eligible
for membership in the NASD and who agree (i) to make no sales
within the United States, its territories or its possessions or
to persons who are citizens thereof or residents therein and (ii)
in making sales to comply with the NASD's Rules of Fair Practice)
and satisfactory to the Company, to purchase, upon the terms
herein set forth, the liquidation preference amount of the
Preferred Securities which the defaulting Underwriter had agreed
to purchase. If any non-defaulting Underwriter or Underwriters
shall determine to exercise such right, such Underwriter or
Underwriters shall give written notice to the Company of the
determination in that regard within 24 hours after receipt of
notice of any such default, and thereupon the Closing Date shall
be postponed for such period, not exceeding three business days,
as the Company shall determine. If in the event of such a
default no non-defaulting Underwriter shall give such notice,
then this Agreement may be terminated by the Company, upon like
notice given to the non-defaulting Underwriters, within a further
period of 24 hours. If in such case the Company shall not elect
to terminate this Agreement, it shall have the right,
irrespective of such default:
(a) to require such non-defaulting Underwriters to
purchase and pay for the respective liquidation preference
amounts of Preferred Securities which they had severally
agreed to purchase hereunder as hereinabove provided and, in
addition, the liquidation preference amounts of Preferred
Securities which the defaulting Underwriter shall have so
failed to purchase up to a liquidation preference amount
thereof equal to one-ninth (1/9) of the respective
liquidation preference amounts of the Preferred Securities
which such non-defaulting Underwriters have otherwise agreed
to purchase hereunder, and/or
(b) to procure one or more persons, who are members of
the NASD (or, if not members of the NASD, who are not
eligible for membership in the NASD and who agree (i) to
make no sales within the United States, its territories or
its possessions or to persons who are citizens thereof or
residents therein and (ii) in making sales to comply with
the NASD's Rules of Fair Practice), to purchase, upon the
terms herein set forth, either all or a part of the
liquidation preference amount of the Preferred Securities
which such defaulting Underwriter had agreed to purchase or
that portion thereof which the remaining Underwriters shall
not be obligated to purchase pursuant to the foregoing
clause (a).
In the event the Company shall exercise its rights under (a)
and/or (b) above, the Company shall give written notice thereof
to the non-defaulting Underwriters within such further period of
24 hours, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company
shall determine.
In the computation of any period of 24 hours referred
to in this Section 5, there shall be excluded a period of 24
hours in respect of each Saturday, Sunday or legal holiday which
would otherwise be included in such period of time.
Any action taken by the Company under this Section 5
shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
Termination by the Company under this Section 5 shall be without
any liability on the part of the Company or any non-defaulting
Underwriter, except as otherwise provided in Sections 6(g) and 9
hereof.
6. Covenants of the Company.
________________________
The Company agrees that:
(a) It will promptly deliver to each of you a signed
copy of the Registration Statement as originally filed or,
to the extent a signed copy is not available, a conformed
copy, certified by an officer of the Company to be in the
form as originally filed, including all Incorporated
Documents and exhibits and of all amendments thereto.
(b) It will deliver to you, as soon as practicable
after the date hereof, as many copies of the Prospectus as
of such date as you may reasonably request.
(c) It will cause the Prospectus to be filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 as soon as practicable and advise you of the issuance of
any stop order under the Securities Act with respect to the
Registration Statement or the institution of any proceedings
therefor of which the Offerors shall have received notice.
The Company will use its best efforts to prevent the
issuance of any such stop order and to secure the prompt
removal thereof if issued.
(d) If, during such period of time (not exceeding nine
months) after the Prospectus has been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 as in the opinion of Counsel for the Underwriters a
prospectus covering the Preferred Securities is required by
law to be delivered in connection with sales by an
Underwriter or dealer, any event relating to or affecting
the Company or of which the Company shall be advised in
writing by you shall occur which in the Company's reasonable
opinion should be set forth in a supplement to, or an
amendment of, the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances when it is
delivered to a purchaser, the Company will, at its expense,
amend or supplement the Prospectus by either (i) preparing
and furnishing to you at the Company's expense a reasonable
number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus or (ii) making an
appropriate filing pursuant to Section 13 of the Exchange
Act, which will supplement or amend the Prospectus so that,
as supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in
the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading; provided that
should such event relate solely to the activities of any of
the Underwriters, then the Underwriters shall assume the
expense of preparing and furnishing any such amendment or
supplement. In case any Underwriter is required to deliver
a prospectus after the expiration of nine months from the
date the Prospectus is filed with, or transmitted for filing
to, the Commission pursuant to Rule 424, the Company, upon
your request, will furnish to you, at the expense of such
Underwriter, a reasonable quantity of a supplemental
prospectus or supplements to the Prospectus complying with
Section 10(a) of the Securities Act.
(e) It will make generally available to its security
holders and the security holders of the Trust, as soon as
practicable, an earning statement (which need not be
audited) covering a period of at least twelve months
beginning not earlier than the first day of the month next
succeeding the month in which occurred the effective date of
the Registration Statement as defined in Rule 158 under the
Securities Act.
(f) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Preferred Securities for offer and sale under the blue-sky
laws of such jurisdictions as you may designate, provided
that the Offerors shall not be required to qualify as a
foreign corporation or dealer in securities, to file any
consents to service of process under the laws of any
jurisdiction, or to meet any other requirements deemed by
the Offerors to be unduly burdensome.
(g) It will, except as herein provided, pay all
expenses and taxes (except transfer taxes) in connection
with (i) the preparation and filing by it of the
Registration Statement, (ii) the issuance and delivery of
the Preferred Securities as provided in Section 5 hereof,
(iii) the preparation, execution and filing by it of the
Supplemental Indenture, (iv) the qualification of the
Preferred Securities under blue-sky laws (including counsel
fees not to exceed $7,500), and (v) the printing and
delivery to the Underwriters of reasonable quantities of the
Registration Statement and, except as provided in Section
6(d) hereof, of the Prospectus. The Company shall not,
however, be required to pay any amount for any expenses of
yours or any of the Underwriters, except that, if this
Agreement shall be terminated in accordance with the
provisions of Section 7, 8 or 10 hereof, the Company will
reimburse you for the fees and disbursements of Counsel for
the Underwriters, whose fees and disbursements the
Underwriters agree to pay in any other event, and will
reimburse the Underwriters for their reasonable out-of-
pocket expenses, in an aggregate amount not exceeding
$5,000, incurred in contemplation of the performance of this
Agreement. The Company shall not in any event be liable to
any of the several Underwriters for damages on account of
loss of anticipated profits.
7. Conditions of Underwriters' Obligations.
_______________________________________
The obligations of the Underwriters to purchase and pay for the
Preferred Securities shall be subject to the accuracy of
the representations and warranties made herein on the part of the
Offerors, to the performance by the Offerors of their obligations
to be performed hereunder prior to the Closing Date, and to the
following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 prior to 6:00 P.M., New York Time, on the second
business day after the date of this Agreement, or such other
time and date as may be approved by you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date; and you
shall have received a certificate, dated the Closing Date
and signed by an officer of the Company, to the effect that
no such stop order is in effect and that no proceedings for
such purpose are pending before, or to the knowledge of the
Company threatened by, the Commission.
(c) On the Closing Date, you shall have received from
Richards, Layton & Finger, Delaware counsel for the Company,
Worsham, Forsythe & Wooldridge, L.L.P., General Counsel for
the Company, Reid & Priest LLP, of counsel for the Company,
and Winthrop, Stimson, Putnam & Roberts, Counsel for the
Underwriters, opinions in substantially the form and
substance prescribed in Schedules III, IV, V and VI hereto
(i) with such changes therein as may be agreed upon by the
Company and you, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the
Preferred Securities shall be supplemented or amended after
the Prospectus shall have been filed with, or transmitted
for filing to, the Commission pursuant to Rule 424, with any
changes therein necessary to reflect such supplementation or
amendment.
(d) On and as of the date hereof, you shall have
received from Deloitte & Touche LLP a letter to the effect
that (i) they are independent certified public accountants
with respect to the Company, within the meaning of the
Securities Act and the applicable published rules and
regulations thereunder, (ii) in their opinion, the financial
statements audited by them and included or incorporated by
reference in the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act and the published rules and
regulations thereunder, (iii) on the basis of a reading of
the unaudited amounts of operating revenues and net income
included or incorporated by reference in the Prospectus and
the related financial statements from which these amounts
were derived, the latest available unaudited financial
statements of the Company and the minute books of the
Company and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it
being understood that the foregoing procedures do not
constitute an audit made in accordance with generally
accepted auditing standards and would not necessarily reveal
matters of significance with respect to the comments made in
such letter, and accordingly that Deloitte & Touche LLP
makes no representation as to the sufficiency of such
procedures for the several Underwriters' purposes), nothing
has come to their attention which caused them to believe
that (A) the unaudited financial statements incorporated by
reference in the Prospectus were not determined in accor-
dance with generally accepted accounting principles applied
on a basis substantially consistent with that of the
corresponding amounts in the latest available audited
financial statements, (B) the unaudited amounts of operating
revenues and net income of the Company included or
incorporated by reference in the Prospectus were not
determined on a basis substantially consistent with that of
the corresponding amounts in the audited statements of
income incorporated by reference in the Prospectus, (C) for
the twelve months ended as of the date of the latest
available financial statements of the Company, there were
any decreases in operating revenues or net income as
compared with the comparable period of the preceding year,
and (D) at a specified date not more than seven days prior
to the date of such letter, there was any change in the
capital stock of the Company, short-term bank loans,
commercial paper, notes payable to Texas Utilities Company
or long-term debt of the Company or decrease in its net
assets, in each case as compared with amounts shown in the
most recent balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
that the Prospectus discloses have occurred or may occur or
which are occasioned by the declaration of a regular
quarterly dividend or the acquisition of long-term debt for
sinking fund purposes, or which are described in such
letter, and (iv) they have compared the dollar amounts (or
percentages or ratios derived from such dollar amounts) and
other financial information included or incorporated by
reference in the Registration Statement and the Prospectus
as reasonably requested by you (in each case to the extent
that such dollar amounts, percentages and other financial
information are derived from the general accounting records
of the Company subject to the internal controls of the
Company's accounting system or are derived indirectly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter, and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter. On
and as of the Closing Date you shall have received from
Deloitte & Touche LLP a letter to the effect that such
accountants reaffirm as of the Closing Date and as though
made on the Closing Date the statements made in the letter
furnished by such accountants on the date hereof.
(e) Since the most recent dates as of which in-
formation is given in the Registration Statement or the
Prospectus there shall not have been any material adverse
change in the business, property or financial condition of
the Company and, since such dates, there shall not have been
any material transaction entered into by the Company, in
each case other than transactions in the ordinary course of
business and transactions contemplated by the Registration
Statement or Prospectus and at the Closing Date you shall
have received a certificate to such effect dated the Closing
Date and signed by an officer of the Company.
(f) All legal proceedings to be taken in connection
with the issuance and sale of the Preferred Securities shall
have been satisfactory in form and substance to Counsel for
the Underwriters.
In case any of the conditions specified above in this
Section 7 shall not have been fulfilled, this Agreement may be
terminated with the consent of Underwriters which have agreed to
purchase in the aggregate 50% or more of the liquidation
preference amount of the Preferred Securities upon notice thereof
to the Company. Any such termination shall be without liability
of any party to any other party except as otherwise provided in
Sections 6(g) and 9 hereof.
8. Conditions of Company's Obligations.
___________________________________
The obligation of the Company to deliver the Preferred
Securities shall be subject to the conditions that the Prospectus
shall have been filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 prior to 6:00 P.M., New York
Time, on the second business day after the date of this Agreement
or such other time and date as may be approved by the Company,
and no stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Closing Date and
no proceedings for that purpose shall be pending before, or
threatened by, the Commission at the Closing Date. In case these
conditions shall not have been fulfilled, this Agreement may be
terminated by the Company upon notice thereof to you. Any such
termination shall be without liability of any party to any other
party except as otherwise provided in Sections 6(g) and 9 hereof.
9. Indemnification.
_______________
(a) The Offerors shall jointly and severally
indemnify, defend and hold harmless each Underwriter and
each person who controls any Underwriter within the meaning
of Section 15 of the Securities Act from and against any and
all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject
under the Securities Act or any other statute or common law
and shall reimburse each such Underwriter and controlling
person for any legal or other expenses (including, to the
extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such
losses, claims, damages or liabilities or in connection with
defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue
statement of a material fact contained in any preliminary
prospectus prior to the Effective Date, or in the
Registration Statement or the Prospectus, or the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading; provided, however, that the
indemnity agreement contained in this Section 9 shall not
apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission
was made in reliance upon information furnished in writing
to the Offerors by any Underwriter, through you or
otherwise, for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement to either thereof, or arising out of, or based
upon, statements in or omissions from that part of the
Registration Statement which shall constitute the Statement
of Eligibility and Qualification under the Trust Indenture
Act of the Trustee under the Mortgage; and provided further,
that the indemnity agreement contained in this Section 9
shall not inure to the benefit of any Underwriter (or of any
person controlling such Underwriter) on account of any such
losses, claims, damages, liabilities, expenses or actions
arising from the sale of the Preferred Securities to any
person if a copy of the Prospectus (exclusive of the
Incorporated Documents) shall not have been given or sent to
such person by or on behalf of such Underwriter with or
prior to the written confirmation of the sale involved
unless, with respect to the delivery of any amendment or
supplement to the Prospectus, the alleged omission or
alleged untrue statement was not corrected in such amendment
or supplement at the time of such written confirmation. The
indemnity agreement of the Offerors contained in this
Section 9 and the representations and warranties of the
Offerors contained in Section 3 hereof shall remain
operative and in full force and effect regardless of any
termination of this Agreement or of any investigation made
by or on behalf of any Underwriter or any such controlling
person, and shall survive the delivery of the Preferred
Securities.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Offerors, their officers and directors, and
each person who controls either of the Offerors within the
meaning of Section 15 of the Securities Act, from and
against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or
common law and shall reimburse each of them for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon
information furnished in writing to the Offerors by or on
behalf of such Underwriter, through you or otherwise, for
use in connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement
to either thereof. Each Underwriter hereby furnishes to the
Offerors in writing expressly for use in the Prospectus (i)
the statements relating to offerings by the Underwriters on
the cover page, (ii) the statements in the first paragraph
on page S-2 concerning stabilization and over allotment by
the Underwriters, and (iii) under "Underwriting", the list
of underwriters, statements in the third paragraph
concerning the offering of the Preferred Securities, the
second sentence of the fifth paragraph concerning the
conduct of the offering and the second sentence of the sixth
paragraph, concerning market making for the Preferred
Securities. The indemnity agreement of the respective
Underwriters contained in this Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Agreement or of any investigation made
by or on behalf of either Offeror, its directors or its
officers, any such Underwriter, or any such controlling
person, and shall survive the delivery of the Preferred
Securities.
(c) The Company, the Trust and the several
Underwriters each shall, upon the receipt of notice of the
commencement of any action against it or any person
controlling it as aforesaid, in respect of which indemnity
may be sought on account of any indemnity agreement
contained herein, promptly give written notice of the
commencement thereof to the party or parties against whom
indemnity shall be sought hereunder, but the omission so to
notify such indemnifying party or parties of any such action
shall not relieve such indemnifying party or parties from
any liability which it or they may have to the indemnified
party otherwise than on account of such indemnity agreement.
In case such notice of any such action shall be so given,
such indemnifying party shall be entitled to participate at
its own expense in the defense, or, if it so elects, to
assume (in conjunction with any other indemnifying parties)
the defense of such action, in which event such defense
shall be conducted by counsel chosen by such indemnifying
party or parties and satisfactory to the indemnified party
or parties who shall be defendant or defendants in such
action, and such defendant or defendants shall bear the fees
and expenses of any additional counsel retained by them; but
if the indemnifying party shall elect not to assume the
defense of such action, such indemnifying party will
reimburse such indemnified party or parties for the
reasonable fees and expenses of any counsel retained by
them; provided, however, if the defendants in any such
action include both the indemnified party and the
indemnifying party and counsel for the indemnifying party
shall have reasonably concluded that there may be a conflict
of interest involved in the representation by such counsel
of both the indemnifying party and the indemnified party,
the indemnified party or parties shall have the right to
select separate counsel, satisfactory to the indemnifying
party, to participate in the defense of such action on
behalf of such indemnified party or parties (it being
understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such
action).
(d) If the indemnification provided for in sub-
paragraph (a) or (b) above shall be unenforceable under
applicable law by an indemnified party, each indemnifying
party agrees to contribute to such indemnified party with
respect to any and all losses, claims, damages, liabilities
and expenses for which each such indemnification provided
for in subparagraph (a) or (b) above shall be unenforceable,
in such proportion as shall be appropriate to reflect the
relative fault of each indemnifying party on the one hand
and the indemnified party on the other in connection with
the statements or omissions which have resulted in such
losses, claims, damages, liabilities and expenses, as well
as any other relevant equitable considerations; provided,
however, that no indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from
any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the
indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Offerors
and each of the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subparagraph
(d) were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to
above.
10. Termination.
___________
This Agreement may be terminated, at any time prior to the
Closing Date, by you with the consent of the Underwriters which
have agreed to purchase in the aggregate 50% or more of the
aggregate liquidation preference amount of the Preferred
Securities if (a) after the date hereof and at or prior to the
Closing Date there shall have occurred any general suspension of
trading in securities on the New York Stock Exchange or there
shall have been established by the New York Stock Exchange or by
the Commission or by any federal or state agency or by the deci-
sion of any court, any general limitation on prices for such
trading or any general restrictions on the distribution of
securities, or a general banking moratorium declared by New York
or federal authorities, or (b) there shall have occurred any new
material (i) outbreak of hostilities or (ii) other national or
international calamity or crisis, including, but not limited to,
an escalation of hostilities which existed prior to the date of
this Agreement, and the effect of any such event specified in
clause (a) or (b) above on the financial markets of the United
States shall be such as to make it impracticable, in the
reasonable judgment of the Underwriters, for the Underwriters to
enforce contracts for the sale of the Preferred Securities. This
Agreement may also be terminated at any time prior to the Closing
Date by you with the consent of the Underwriters which have
agreed to purchase in the aggregate 50% or more of the
liquidation preference amount of the Preferred Securities, if, in
your reasonable judgment, the subject matter of any amendment or
supplement to the Registration Statement or the Prospectus (other
than an amendment or supplement relating solely to the activity
of any Underwriter or Underwriters) prepared and issued by the
Company after the effectiveness of this Agreement shall have
disclosed a material adverse change in the business, property or
financial condition of the Company which has materially impaired
the marketability of the Preferred Securities. Any termination
hereof pursuant to this Section 10 shall be without liability of
any party to any other party except as otherwise provided in
Sections 6(g) and 9 hereof.
11. Miscellaneous.
_____________
THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. This Agreement
shall inure to the benefit of the Company, the several
Underwriters and, with respect to the provisions of Section 9
hereof, each director, officer and controlling person referred to
in said Section 9, and their respective successors. Nothing
herein is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of any provision in this Agreement.
The term "successor" as used herein shall not include any
purchaser, as such purchaser, of any of the Preferred Securities
from any of the several Underwriters.
12. Notices.
_______
All communications hereunder shall be in writing, and, if to
the Underwriters, shall be mailed or delivered to you at the
address set forth above, or, if to the Company, shall be mailed
or delivered to it at 1601 Bryan Street, Dallas, Texas 75201,
Attention: Treasurer.
<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please indicate your acceptance
thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding
agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
ENSERCH CORPORATION
By ____________________________
ENSERCH CAPITAL I
By _____________________________
(Authorized Representative)
Accepted and delivered as of
the date first above written
BY
By __________________________
<PAGE>
SCHEDULE I
__________
Underwriting Agreement dated: __________________________________
Securities: _____________ Preferred Securities
Liquidation Preference Amount $
per Capital Securities:
Date of Maturity:
Distribution Rate: _____%
Purchase Price: 100% of the principal amount thereof
Public Offering Price ___% of the principal amount thereof
Series Designation: ______% Preferred Securities (liquidation
preference $______ per Preferred Security)
<PAGE>
SCHEDULE II
___________
ENSERCH CAPITAL I PREFERRED SECURITIES
Preferred
Securities
Each
Having a
Liquidation
Preference
Name Amount of
$
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . .
<PAGE>
Schedule III
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
[Date]
Re: ENSERCH Capital I
_________________
Ladies and Gentlemen:
We have acted as special Delaware counsel for ENSERCH
Corporation, a Texas corporation (the "Company"), and ENSERCH
Capital I, a Delaware business trust (the "Trust"), in connection
with the matters set forth herein. At the request of the Company
and the Trust, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
December 18, 1997 (the "Certificate"), as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary
of State") on December 18, 1997;
(b) The Trust Agreement of the Trust, dated as of
December 17, 1997, among the Company and the trustees of the
Trust named therein;
(c) The Prospectus, dated January __, 1998 and the
Prospectus Supplement, dated ___________ __, ____, (together, the
"Prospectus"), relating to the ____% Preferred Trust Securities
of the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities");
(d) The Amended and Restated Trust Agreement of the
Trust, dated as of __________________ (including Exhibits B and D
thereto) (the "Trust Agreement"), among the Company, the trustees
of the Trust named therein (the "Trustees"), and the holders,
from time to time, of undivided beneficial interests in the
assets of the Trust;
(e) The Underwriting Agreement, dated _______________
the "Underwriting Agreement"), among the Company, the Trust and
______________________________________________________; and
(f) A Certificate of Good Standing for the Trust,
dated ___________________, obtained from the Secretary of State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (f) above. In particular, we have not reviewed any
document (other than the documents listed in paragraphs (a)
through (f) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein.
We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the
statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed
to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have
assumed (i) that the Trust Agreement constitutes the entire
agreement among the parties thereto with respect to the subject
matter thereof, including with respect to the creation, operation
and termination of the Trust, and that the Trust Agreement and
the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below,
the due creation or due organization or due formation, as the
case may be, and valid existence in good standing of each party
to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to
the documents examined by us, (iv) except to the extent set forth
in paragraph 2 below, that each of the parties to the documents
examined by us has the power and authority to execute and
deliver, and to perform its obligations under, such documents,
(v) except to the extent set forth in paragraph 4 below, the due
authorization, execution and delivery by all parties thereto of
all documents examined by us, (vi) the receipt by each Person
to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred
Trust Securities Certificate registered in the name of such Person
for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement
and the Prospectus, (vii) that the Preferred Securities are
issued and sold to the Preferred Security Holders in accordance
with the Trust Agreement and the Prospectus, and (viii) that the
Trust derives no income from or connected with sources within the
State of Delaware and has no assets, activities (other than
having a Delaware trustee as required by the Delaware Business
Trust Act and the filing of documents with the Secretary of
State) or employees in the State of Delaware. We have not
participated in the preparation of the Prospectus and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act and, under the Trust Agreement and the
Delaware Business Trust Act, has the trust power and authority to
conduct its business as described in the Prospectus, and all
filings required under the laws of the State of Delaware with
respect to the creation and valid existence of the Trust as a
business trust have been made.
2. Under the Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority to (i) own
property and conduct its business, all as described in the
Prospectus, (ii) execute and deliver, and to perform its
obligations under, the Underwriting Agreement and (iii) issue and
perform its obligations under the [Trust Securities].
3. The Trust Agreement is a legal, valid and binding
agreement of the Company and the Trustees, and is enforceable
against the Company and the Trustees, in accordance with its terms.
4. Under the Trust Agreement and the Delaware
Business Trust Act, the execution and delivery of the
Underwriting Agreement by the Trust, and the performance by the
Trust of its obligations thereunder, have been duly authorized by
all requisite trust action on the part of the Trust.
5. No authorization, approval, consent or order of
any Delaware court or Delaware governmental authority or Delaware
agency is required to be obtained by the Trust solely in
connection with the issuance and sale of the Trust Securities.
6. The Preferred Securities have been duly authorized
by the Trust Agreement, and when issued and sold in accordance
with the Trust Agreement, the Preferred Securities will be,
subject to the qualifications set forth in paragraph 7 below,
fully paid and nonassessable undivided beneficial interests in the
assets of the Trust.
7. The Preferred Security Holders, as beneficial
owners of the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated, pursuant to the Trust
Agreement, to (i) provide indemnity and/or security in connection
with and pay taxes or governmental charges arising from transfers
or exchanges of Preferred Trust Securities Certificates and
the issuance of replacement Preferred Trust Securities Certificates
and (ii) provide security or indemnity in connection with requests
of or directions to the Property Trustee to exercise its rights and
powers under the Trust Agreement.
8. Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Preferred Securities is not
subject to preemptive rights.
9. The issuance and sale by the Trust of the [Trust
Securities], the execution, delivery and performance by the Trust
of the Underwriting Agreement, the consummation by the Trust of
the transactions contemplated thereby and compliance by the Trust
with its obligations thereunder do not violate (i) any of the
provisions of the Certificate or the Trust Agreement, or (ii) any
applicable Delaware law or administrative regulation.
The opinion expressed in paragraph 3 above is subject
to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance or transfer and other similar laws
relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the
effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
We consent to your relying as to matters of Delaware
law upon this opinion in connection with your entering into the
Underwriting Agreement. We also consent to the reliance by The
Bank of New York (in its capacity as Debenture Trustee under the
Subordinated Indenture, as trustee under the Guarantee, and as
Property Trustee under the Trust Agreement) as to matters of
Delaware law upon this opinion as if it were addressed to it in
connection with its entering into the Subordinated Indenture, the
Guarantee and the Trust Agreement. In addition, we consent to
Winthrop, Stimson, Putnam & Roberts' relying as to matters of
Delaware law upon this opinion in connection with an opinion to
be rendered by it pursuant to the Underwriting Agreement. Except
as stated above, without our prior written consent, this opinion
may not be furnished or quoted to, or relied upon by, any other
Person for any purpose.
Very truly yours,
<PAGE>
Schedule IV
[LETTERHEAD OF WORSHAM, FORSYTHE & WOOLDRIDGE, L.L.P.]
[Date]
Ladies and Gentlemen:
We have acted as General Counsel to ENSERCH Corporation
(the "Company") in connection with the transactions contemplated
by the Underwriting Agreement dated __________________ among the
Company, ENSERCH Capital I (the "Trust") and you (the
"Underwriting Agreement"), including, among others (i) the
issuance by the Trust, a statutory business trust organized under
the Delaware Business Trust Act (the "Delaware Act") of _______%
Preferred Trust Securities (the "Preferred Securities") having an
aggregate liquidation preference amount of $_____________, (ii)
the issuance by the Company of $____________ principal amount of
its Debentures and (iii) the guarantee by the Company of the
Preferred Securities pursuant to a Guarantee Agreement, dated the
date hereof, between the Company and The Bank of New York, as
trustee (the "Guarantee").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Indenture, the Debentures and the Guarantee. We
have also examined such other documents and satisfied ourselves
as to such other matters as we have deemed necessary as a basis
for the conclusions of law contained in the opinions expressed
below. We have relied as to various questions of fact upon the
representations and warranties of the Company contained in the
Underwriting Agreement and, where we deemed appropriate, on
certificates of public officials. We have relied upon a
certificate of the Indenture Trustee as to the authentication of
the Debentures. In our examination we have assumed the
genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as
photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Company is a public utility corporation duly
authorized by its articles of incorporation, as amended, to
conduct the business which it is now conducting, is subject, as
to rates and services, to the jurisdiction of certain
authorities, as set forth in the Prospectus, and holds valid and
subsisting franchises, licenses and permits authorizing it to
carry on the utility business in which it is engaged.
2. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
3. The Indenture, the Trust Agreement and the
Guarantee have been duly qualified under the Trust Indenture Act;
4. The Debentures and the Indenture have been duly
authorized, executed and delivered by the Company, the Debentures
are entitled to the benefits of the Indenture, and the Debentures
and the Indenture are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting
the rights and remedies of creditors generally and of general
principles of equity;
5. The Guarantee has been duly authorized, executed
and delivered by the Company, and is enforceable against the
Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the rights and remedies of creditors
generally and of general principles of equity;
6. The statements made in the Prospectus under the
captions "Description of the Junior Subordinated Debentures,"
"Description of the Guarantee," "Description of the Preferred
Trust Securities" and ___________ and ___________, insofar as
such statements constitute summaries of the legal matters or
documents referred to therein, are accurate in all material
respects;
7. Neither the Company nor the Trust is, or after
giving effect to the issuance and sale of the Securities will be,
directly or indirectly controlled by, or acting on behalf of any
person which is, an investment company within the meaning of the
Investment Company Act of 1940, as amended;
8. Other than as stated in the Registration Statement
and the Prospectus, there are no material pending legal
proceedings to which the Company is a party or of which property
of the Company is the subject which depart from the ordinary
routine litigation incident to the kind of business conducted by
the Company, and to our best knowledge no such proceedings are
contemplated;
9. The Registration Statement, as amended, as of the
Effective Date, and the Prospectus as of such date (except as to
the financial statements and schedules and other financial and
statistical data contained therein as to which we do not express
any belief and except for that part of the Registration Statement
that constitutes the Forms T-1) complied as to form in all
material respects with the applicable requirements of the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated
Documents (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to
which we do not express any belief), at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
and the Registration Statement has become and is effective under
the Securities Act and, to our best knowledge, no proceedings for
a stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act; and
10. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debentures and the issuance
by the Company of the Guarantee.
In the course of the preparation of the information
relating to the Company contained in the Prospectus (including
the documents incorporated therein by reference) we had
discussions with certain of its officers and representatives,
with other counsel for the Company and with certain of your
officers and employees and your counsel, but we made no
independent verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Prospectus and take no
responsibility therefor except as set forth in paragraph 6 above.
However, our examination of the information relating to the
Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except for financial
statements and schedules and financial and statistical data as to
which we do not express any belief and except for that part of
the Registration Statement that constitutes the Forms T-1) (i)
the Registration Statement, as of the Effective Date, included an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) the Prospectus as
of its date, included, or on the date hereof includes an untrue
statement of a material fact or on such dates omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
We are members of the State Bar of Texas and do not
hold ourselves out as experts in the laws of the State of New
York. As to all matters of New York law, we have, with your
consent, relied upon the opinion of Reid & Priest LLP, New York,
New York, of Counsel to the Company.
Very truly yours,
WORSHAM, FORSYTHE &
WOOLDRIDGE L.L.P.
_______________________
A Partner
<PAGE>
Schedule V
[LETTERHEAD OF REID & PRIEST LLP]
New York, New York
[Date]
Ladies and Gentlemen:
We have acted as counsel to ENSERCH Corporation (the
"Company") in connection with the transactions contemplated by
the Underwriting Agreement dated ______________________ among the
Company, ENSERCH Capital I (the "Trust") and you (the
"Underwriting Agreement"), including, among others, (i) the
issuance by the Trust, a statutory business trust organized under
the Delaware Business Trust Act (the "Delaware Act") of ______%
Preferred Trust Securities (the "Preferred Securities") having an
aggregate liquidation preference amount of $________________ (ii)
the issuance by the Company of $_________________ principal
amount of its Debentures and (iii) the guarantee by the Company
of the Preferred Securities pursuant to a Guarantee Agreement,
dated the date hereof, between the Company and The Bank of New
York, as trustee (the "Guarantee").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Indenture, the Debentures and the Guarantee. We
have also examined such other documents and satisfied ourselves
as to such other matters as we have deemed necessary as a basis
for the conclusions of law contained in the opinions expressed
below. We have relied as to various questions of fact upon the
representations and warranties of the Company contained in the
Underwriting Agreement and, where we deemed appropriate, on
certificates of public officials. We have relied upon a
certificate of the Indenture Trustee as to the authentication of
the Debentures. In our examination we have assumed the
genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as
photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
2. The Indenture, the Trust Agreement and the
Guarantee have been duly qualified under the Trust Indenture Act;
3. The Debentures and the Indenture have been duly
authorized, executed and delivered by the Company, the Debentures
are entitled to the benefits of the Indenture, and the Debentures
and the Indenture are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting
the rights and remedies of creditors generally and of general
principles of equity;
4. The Guarantee has been duly authorized, executed
and delivered by the Company, and is enforceable against the
Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the rights and remedies of creditors
generally and of general principles of equity;
5. The statements made in the Prospectus under the
captions "Description of the Junior Subordinated Debentures,"
"Description of the Guarantee," "Description of the Preferred
Trust Securities," __________ and _____________, insofar as such
statements constitute summaries of the legal matters or documents
referred to therein, are accurate in all material respects;
6. Neither the Company nor the Trust is, or after
giving effect to the issuance and sale of the Securities
will be, directly or indirectly controlled by, or acting on
behalf of any person which is, an investment company within the
meaning of the Investment Company Act of 1940, as amended;
7. The Registration Statement, as amended, as of the
Effective Date, and the Prospectus as of such date (except as to
the financial statements and schedules and other financial and
statistical data contained therein as to which we do not express
any belief and except for that part of the Registration Statement
that constitutes the Forms T-1) complied as to form in all
material respects with the applicable requirements of the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated
Documents (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to
which we do not express any belief), at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
and the Registration Statement has become and is effective under
the Securities Act and, to our best knowledge, no proceedings for
a stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act; and
8. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debentures and the issuance
by the Company of the Guarantee.
We herewith confirm as our opinion the statements under
the caption "Certain United States Federal Income Tax
Consequences Relating to the Preferred Trust Securities" in the
Prospectus.
In the course of the preparation of the information
relating to the Company contained in the Prospectus (including
the documents incorporated therein by reference) we had
discussions with certain of its officers and representatives,
with other counsel for the Company and with certain of your
officers and employees and your counsel, but we made no
independent verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Prospectus and take no
responsibility therefor except as set forth in the immediately
preceding paragraph and in paragraph 5 above. However, our
examination of the information relating to the Company contained
in the Registration Statement and the Prospectus and our
discussions did not disclose to us anything which gives us reason
to believe that (except for financial statements and schedules
and financial and statistical data as to which we do not express
any belief and except for that part of the Registration Statement
that constitutes the Forms T-1) (i) the Registration Statement,
as of the Effective Date, included an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or (ii) the Prospectus as of its date, included or on
the date hereof includes an untrue statement of a material fact
or on such dates omitted or omits to state a material fact neces-
sary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
We are members of the New York Bar and do not hold
ourselves out as experts in the laws of the State of Texas. As
to all matters of Texas law, we have, with your consent, relied
upon the opinion of Worsham, Forsythe & Wooldridge, L.L.P.,
Dallas, Texas, General Counsel for the Company. We believe that
you and we are justified in relying on such opinion.
Very truly yours,
REID & PRIEST LLP
<PAGE>
SCHEDULE VI
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[Date]
Ladies and Gentlemen:
We have acted as counsel to you and the several
Underwriters in connection with the transactions
contemplated by the Underwriting Agreement dated __________
between ENSERCH Corporation (the "Company"), ENSERCH
Capital I (the "Trust") and you (the "Underwriting
Agreement") in which (i) the Trust, a statutory business
trust organized under the Delaware Business Trust Act,
proposes to issue $_________________ aggregate liquidation
preference amount of its ______% Preferred Trust Securities
Due ____________________ (the "Preferred Securities"), (ii)
the Company proposes to issue $__________ principal amount
of its ____% Junior Subordinated Debentures, Series _, Due
__________________, (the "Debentures") and (iii) the
Company proposes to guarantee the Preferred Securities to
the extent described in the Prospectus. Terms not
otherwise defined herein are used with the meanings
ascribed to them in the Underwriting Agreement.
We are members of the New York Bar and do not hold
ourselves out as experts in the laws of the State of Texas.
We have, with your consent, relied upon an opinion of even
date herewith addressed to you by Worsham, Forsythe &
Wooldridge, L.L.P., Dallas, Texas, General Counsel for the
Company, as to the matters covered in such opinion and
believe that it is satisfactory and that you and we are
justified in relying thereon. We understand that you are
relying, for all matters of Delaware law, upon an opinion
of even date herewith addressed to you by Richards, Layton
& Finger, Delaware Counsel for the Company.
We have, in addition, examined the documents
described in the list of closing papers as having been
delivered to you at the closing and such other documents
and satisfied ourselves as to such other matters as we have
deemed necessary in order to enable us to express this
opinion. As to various questions of fact material to this
opinion, we have relied upon representations of the Company
and statements in the Registration Statement hereinafter
mentioned. In such examination we have assumed the
genuineness of all signatures, the authenticity of all
documents submitted to us and the genuineness and
conformity to original documents of documents submitted to
us as certified or photostatic copies.
Based upon the foregoing, we are of the opinion
that:
1. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
2. The Indenture has been duly qualified under the
Trust Indenture Act.
3. The Debentures and the Indenture have been duly
authorized, executed and delivered by the Company, the
Debentures are entitled to the benefits of the Indenture,
and the Debentures and the Indenture are legal, valid and
binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to the
effect of bankruptcy, insolvency, reorganization,
fraudulent conveyance, receivership, moratorium and other
laws affecting the rights and remedies of creditors
generally and of general principles of equity.
4. The Guarantee has been duly authorized, executed
and delivered by the Company, and is enforceable against
the Company in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization,
fraudulent conveyance, receivership, moratorium and other
laws affecting the rights and remedies of creditors
generally and of general principles of equity.
5. The statements made in the Prospectus under the
captions "Description of the Junior Subordinated
Debentures," "Description of the Guarantee,"
________________ and ______________, insofar as such
statements constitute summaries of the legal matters or
documents referred to therein, are accurate in all material
respects.
6. Neither the Company nor the Trust is, or after
giving effect to the issuance and sale of the
Securities, will be, and neither the Company nor the Trust
is directly or indirectly controlled by, or acting on
behalf of any person which is, an investment company within
the meaning of the Investment Company Act of 1940.
7. No other approval, authorization, consent or
order of any public board or body (other than in connection
or in compliance with the provisions of the blue-sky laws
of any jurisdiction) is legally required for the
authorization of the issue and sale by the Company of the
Debentures and the Guarantee as contemplated in the
Underwriting Agreement.
8. The Registration Statement, as amended, at the
Effective Date thereof, and the Prospectus at the time it
was filed with or transmitted for filing to the Commission
pursuant to Rule 424 (except in each case as to financial
statements and schedules and other financial and
statistical data contained or incorporated by reference
therein and except for that part of the Registration
Statement that constitutes the Forms T-1, upon which we
express no opinion), complied as to form in all material
respects with the Securities Act.
In passing upon the form of the Registration
Statement and the form of the Prospectus, we necessarily
assume the correctness and completeness of the statements
made by the Company and the information included in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements
relate to us and as set forth in paragraph 5 above. In the
course of the preparation by the Company of the
Registration Statement and the Prospectus, we have had
discussions with certain of its officers and
representatives, with counsel for the Company, with
Deloitte & Touche, LLP, the independent auditors who
audited certain of the financial statements incorporated by
reference in the Registration Statement and the Prospectus
and with certain of your representatives. Our examination
of the Registration Statement and the Prospectus and our
discussions did not disclose to us any information which
gives us reason to believe that at the Effective Date the
Registration Statement contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the time
it was filed with or transmitted for filing to the
Commission pursuant to Rule 424, or at the date hereof,
included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
We do not express any opinion as to the financial
statements or other financial or statistical data contained
or incorporated by reference in the Registration Statement
or Prospectus or as to that part of the Registration
Statement that constitutes the Forms T-1.
This opinion is given to you solely for the use of
the several Underwriters in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and may not be relied upon by any other person
or for any other purpose.
Very truly yours,
Exhibit 4(a)-2
ARTICLES OF MERGER
OF
LONE STAR ENERGY COMPANY
WITH AND INTO
ENSERCH CORPORATION
The undersigned domestic corporation adopts the following
Articles of Merger for the purpose of effecting a merger in
accordance with the provisions of Article 5.16 of the Texas
Business Corporation Act.
1. Lone Star Energy Company, a Texas corporation (the
"Subsidiary"), will merger with and into ENSERCH Corporation, a
Texas corporation (the "Parent"), and the Parent will be the
surviving corporation.
2. The number of outstanding shares of each class of the
Subsidiary and the number of such shares of each class owned by
the Parent are as follows:
Number of
Class of Number of Shares
Name of Shares Shares Outstanding
Corporation Outstanding Outstanding Owned by Parent
----------- ----------- ----------- ---------------
Lone Star
Energy Company Common 5,000,000 5,000,000
3. A copy of the resolutions adopted on September 10, 1996
by the Board of Directors of Parent to merge the Subsidiary into
Parent is attached hereto as Exhibit A.
4. The merger shall be effective upon the issuance of the
Certificate of Merger by the Secretary of State in accordance
with the provisions of Article 5.05 of the Texas Business
Corporation Act.
Executed this 22nd day of April, 1997.
ENSERCH Corporation
By: /s/ J.W. Pinkerton
--------------------------------
J.W. Pinkerton, Vice President
<PAGE>
EXHIBIT A
Merger of Lone Star Energy Company into the Corporation
-------------------------------------------------------
WHEREAS Section 5.16 of the Texas Business Corporation Act
permits short-form mergers if the subsidiary company and the
parent company are each a Texas corporation,
RESOLVED, that Lone Star Energy Company, a Texas corporation
("LSEC"), which is a wholly owned subsidiary of ENSERCH
Corporation, merge with and into ENSERCH Corporation pursuant to
Section 5.16 of the Texas Business Corporation Act (the "Merger")
and that ENSERCH Corporation assume all of the obligations LSEC
at such time; and
RESOLVED, that the proper officers of this Corporation are
hereby authorized and empowered to file with the Secretary of
State of the State of Texas Articles of Merger to effect the
Merger of LSEC into this Corporation and to take, or cause to be
taken, all such further action and to execute and deliver or
cause to be executed and delivered, in the name of and on behalf
of this Corporation, all such further instruments and documents
as any such officer may deem to be necessary or advisable in
order to effect the purpose and intent of the foregoing
resolution and to be in the best interests of this Corporation
(as conclusively evidenced by the taking of such action or the
execution and delivery of such instruments and documents, as the
case may be, by or under the direction of any such officer).
<PAGE>
CERTIFICATION OF ACCOUNT STATUS
THE STATE OF TEXAS
COUNTY OF TRAVIS
I, John Sharp, Comptroller of Public Accounts of the State of
Texas, DO HEREBY CERTIFY that according to the current records of
this office
LONE STAR ENERGY COMPANY
is out of business, that all required reports for taxes
administered by the Comptroller have been filed and that the
taxes due on those reports have been paid. This certificate may
be used for the purpose of dissolution, merger or withdrawal with
the Texas Secretary of State.
This certificate is valid through DECEMBER 31, 1997.
GIVEN UNDER MY HAND AND
SEAL OF OFFICE in the
City of Austin, this
17th day of April, 1997 A.D.
/s/ John Sharp
JOHN SHARP
Comptroller of Public Accounts
Exhibit 4(a)-3
ARTICLES OF MERGER
OF
ENSERCH EXPLORATION HOLDINGS, INC.
WITH AND INTO
ENSERCH CORPORATION
The undersigned domestic corporation adopts the following
Articles of Merger for the purpose of effecting a merger in
accordance with the provisions of Article 5.16 of the Texas
Business Corporation Act.
1. Enserch Exploration Holdings, Inc., a Delaware
corporation (the "Subsidiary"), will merger with and into ENSERCH
Corporation, a Texas corporation (the "Parent"), and the Parent
will be the surviving corporation. Section 253 of the General
Corporation Law of Delaware provides for short-form mergers
between a domestic subsidiary corporation and a foreign parent
corporation.
2. The number of outstanding shares of each class of the
Subsidiary and the number of such shares of each class owned by
the Parent are as follows:
Number of Number of
Name of Class of Shares Outstanding
Corporation Shares Outstanding Owned by Parent
----------- -------- ----------- ---------------
Enserch Common-
Exploration Class A 169,920 169,920
Holdings, Inc. Common-
Class B 80 80
3. A copy of the resolutions adopted on September 10,
1996, by the Board of Directors of Parent to merge the Subsidiary
into Parent is attached hereto as Exhibit A.
4. The merger shall be effective upon the issuance of the
Certificate of Merger by the Secretary of State in accordance
with the provisions of Article 5.05 of the Texas Business
Corporation Act.
Executed this 25th day of April, 1997 at 4:00 P.M.
ENSERCH Corporation
By: /s/ J.W. Pinkerton
--------------------------------
J.W. Pinkerton, Vice President
<PAGE>
EXHIBIT A
WHEREAS Section 5.16 of the Texas Business Corporation Act
permits short-form mergers if the subsidiary is a foreign
corporation and the parent is a Texas corporation, provided that
this procedure is permitted by the laws of the foreign
corporation's jurisdiction of incorporation, and
WHEREAS Section 253 of the General Corporation Law of
Delaware provides for short-form mergers between a domestic
subsidiary corporation and a foreign parent corporation,
RESOLVED, That Enserch Exploration Holdings, Inc., a
Delaware corporation ("Holdings"), which is a wholly owned
subsidiary of ENSERCH Corporation, merge with and into ENSERCH
Corporation pursuant to Section 5.16 of the Texas Business
Corporation Act (the "Merger") and that ENSERCH Corporation
assume all of the obligations of Holdings at such time; and
RESOLVED, That the proper officers of this Corporation are
hereby authorized and empowered to file with the Secretary of
State of the State of Texas Articles of Merger and with the
Secretary of State of the State of Delaware a Certificate of
Ownership and Merger to effect the Merger of Holdings into this
Corporation and to take, or cause to be taken, all such further
action and to execute and deliver or cause to be executed and
delivered, in the name of and on behalf of this Corporation, all
such further instruments and documents as any such officer may
deem to be necessary or advisable in order to effect the purpose
and intent of the foregoing resolution and to be in the best
interests of this Corporation (as conclusively evidenced by the
taking of such action or the execution and delivery of such
instruments and documents, as the case may be, by or under the
direction of any such officer).
<PAGE>
CERTIFICATION OF ACCOUNT STATUS
THE STATE OF TEXAS
COUNTY OF TRAVIS
I, John Sharp, Comptroller of Public Accounts of the State of
Texas, DO HEREBY CERTIFY that according to the current records of
this office
ENSERCH EXPLORATION HOLDINGS INC.
is out of business, that all required reports for taxes
administered by the Comptroller have been filed and that the
taxes due on those reports have been paid. This certificate may
be used for the purpose of dissolution, merger or withdrawal with
the Texas Secretary of State.
This certificate is valid through DECEMBER 31, 1997.
GIVEN UNDER MY HAND AND
SEAL OF OFFICE in the
City of Austin, this
17th day of April, 1997 A.D.
/s/ John Sharp
JOHN SHARP
Comptroller of Public Accounts
Exhibit 4(a)-4
ASSUMED NAME CERTIFICATE
FOR AN INCORPORATED BUSINESS OR PROFESSION
1. The assumed name under which the business or professional
service is to be conducted or rendered is Lone Star Energy
Company.
2. The name of the incorporated business or profession as
stated in its Restated Articles of Incorporation is ENSERCH
Corporation.
3. The state, country, or other jurisdiction under the laws of
which it was incorporated or associated in Texas, and the
address of its registered or similar office in that
jurisdiction is c/o Corporate Secretary's Department,
ENSERCH Center, 300 South St. Paul Street, Suite 850-EC,
Dallas, Texas 75201.
4. The period, not to exceed ten years, during which the
assumed name will be used is June 11, 1997 to June 11, 2007.
5. The corporation is a business corporation.
6. The corporation is required to maintain a registered office
in Texas. The address of the registered office is c/o
Corporate Secretary's Department, ENSERCH Center, Suite 850-
EC, Dallas, Texas 75201, and the name of its registered
agent at such address is Michael G. Fortado. The address of
the principal office is 300 South St. Paul Street, Suite
850-EC, Dallas, Texas 75201.
7. The county or counties where business or professional
services are being or are to be conducted or rendered under
such assumed name are all counties within the state.
/s/ R.L. Jay
-----------------------------
Assistant Corporate Secretary
Before me on this 18th day of June, 1997, personally
appeared Robert L. Jay, Assistant Corporate Secretary and
acknowledged to me that he executed the foregoing certificate of
the purposes therein expressed.
/s/ Molly M. Hubbard
------------------------------
Notary Public - Dallas County
(NOTARY SEAL)
Exhibit 4(a)-5a
ARTICLES OF MERGER
OF
ENSERCH MERGER CORP.
with and into
ENSERCH CORPORATION
Pursuant to the provisions of Article 5.04 of the Texas
Business Corporation Act, the undersigned corporations adopt the
following Articles of Merger for the purpose of merging ENSERCH
Merger Corp. with and into ENSERCH Corporation:
ARTICLE I
The Amended and Restated Agreement and Plan of Merger, dated
as of April 13, 1996, attached hereto as Annex I is incorporated
herein by reference for all purposes. The Plan of Merger has
been approved by the shareholders of each of the undersigned
corporations in the manner prescribed by the Texas Business
Corporation Act.
ARTICLE II
As to each of the undersigned corporations, the number of
shares outstanding and the number of shares voted for and against
the Plan of Merger were as follows:
Name of Number of Shares Number of Shares Voted
Corporation Outstanding FOR AGAINST
----------- ---------------- --- -------
ENSERCH Corporation 69,527,645 56,012,677 257,786
ENSERCH Merger Corp. 1,000 1,000 0
No outstanding shares of either corporation were entitled to
vote as a class on the Plan of Merger.
ENSERCH CORPORATION
By: /s/ Illegible
-----------------------
An Authorized Officer
ENSERCH MERGER CORP.
By: /s/ Illegible
-----------------------
An Authorized Officer
<PAGE>
CERTIFICATION OF ACCOUNT STATUS
THE STATE OF TEXAS
COUNTY OF TRAVIS
I, John Sharp, Comptroller of Public Accounts of the State of
Texas, DO HEREBY CERTIFY that according to the records of this
office
ENSERCH MERGER CORP.
is, as of this date, in good standing with this office for the
purpose of dissolution under Article 6.01 of the Texas Business
Corporation Act, merger, or withdrawal of an out-of-state
corporation, having filed the required franchise tax reports and
paid the franchise tax computed to be due thereunder through
DECEMBER 31, 1997.
This certificate is not valid for the purpose of dissolution
under Article 6.06 of the Texas Business Corporation Act or
withdrawal of a limited liability company.
GIVEN UNDER MY HAND AND
SEAL OF OFFICE in the
City of Austin, this
4th day of August, 1997 A.D.
/s/ John Sharp
JOHN SHARP
Comptroller of Public Accounts
Exhibit 4(c)
------------------------------------------
ENSERCH CORPORATION
TO
THE BANK OF NEW YORK
TRUSTEE
---------
INDENTURE
(FOR UNSECURED DEBT SECURITIES)
DATED AS OF , 1998
-------- --
------------------------------------------
<PAGE>
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITAL OF THE COMPANY . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions and Other Provisions of General Application . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . 3
Governmental Authority . . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . 6
Required Currency . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . 6
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE PART OF THE INDENTURE.
<PAGE>
Securities . . . . . . . . . . . . . . . . . . . . 7
Security Register and Security Registrar . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . 7
Stated Interest Rate . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . 7
Tranche . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . 9
SECTION 105. Notices, etc. to Trustee and Company . . . 11
SECTION 106. Notice to Holders of Securities; Waiver . 12
SECTION 107. Conflict with Trust Indenture Act . . . . 12
SECTION 108. Effect of Headings and Table of Contents . 12
SECTION 109. Successors and Assigns . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays . . . . . . . . . . . . . . 13
ARTICLE TWO . . . . . . . . . . . . . . . . . . . . . . . . . 13
Security Forms . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 201. Forms Generally . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . 14
ARTICLE THREE . . . . . . . . . . . . . . . . . . . . . . . . 14
The Securities . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 301. Amount Unlimited; Issuable in Series . . . 14
SECTION 302. Denominations . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 304. Temporary Securities . . . . . . . . . . . 21
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . 23
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . 24
SECTION 308. Persons Deemed Owners . . . . . . . . . . 25
SECTION 309. Cancellation by Security Registrar . . . . 25
SECTION 310. Computation of Interest . . . . . . . . . 26
SECTION 311. Payment to Be in Proper Currency . . . . . 26
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . 26
Redemption of Securities . . . . . . . . . . . . . . . . . . 26
SECTION 401. Applicability of Article . . . . . . . . . 26
SECTION 402. Election to Redeem; Notice to Trustee . . 27
SECTION 403. Selection of Securities to Be Redeemed . . 27
SECTION 404. Notice of Redemption . . . . . . . . . . . 27
SECTION 405. Securities Payable on Redemption Date . . 29
SECTION 406. Securities Redeemed in Part . . . . . . . 29
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . . . 30
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 501. Applicability of Article . . . . . . . . . 30
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . 30
SECTION 503. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE SIX . . . . . . . . . . . . . . . . . . . . . . . . . 31
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 601. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . 31
SECTION 602. Maintenance of Office or Agency . . . . . 31
SECTION 603. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . . . . 32
SECTION 604. Corporate Existence . . . . . . . . . . . 34
SECTION 605. Maintenance of Properties . . . . . . . . 34
SECTION 606. Annual Officer's Certificate as to
Compliance. . . . . . . . . . . . . . . . . . . . . 34
SECTION 607. Waiver of Certain Covenants . . . . . . . 34
ARTICLE SEVEN . . . . . . . . . . . . . . . . . . . . . . . . 35
Satisfaction and Discharge . . . . . . . . . . . . . . . . . 35
SECTION 701. Satisfaction and Discharge of Securities . 35
SECTION 702. Satisfaction and Discharge of Indenture . 37
SECTION 703. Application of Trust Money . . . . . . . . 38
ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . . . . 39
Events of Default; Remedies . . . . . . . . . . . . . . . . . 39
SECTION 801. Events of Default . . . . . . . . . . . . 39
SECTION 802. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . 40
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . 41
SECTION 804. Trustee May File Proofs of Claim . . . . . 42
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . 43
SECTION 806. Application of Money Collected . . . . . . 43
SECTION 807. Limitation on Suits . . . . . . . . . . . 43
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . 44
SECTION 809. Restoration of Rights and Remedies . . . . 44
SECTION 810. Rights and Remedies Cumulative . . . . . . 45
SECTION 811. Delay or Omission Not Waiver . . . . . . . 45
SECTION 812. Control by Holders of Securities . . . . . 45
SECTION 813. Waiver of Past Defaults . . . . . . . . . 45
SECTION 814. Undertaking for Costs . . . . . . . . . . 46
SECTION 815. Waiver of Stay or Extension Laws . . . . . 46
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . 47
The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 901. Certain Duties and Responsibilities . . . 47
SECTION 902. Notice of Defaults . . . . . . . . . . . . 47
SECTION 903. Certain Rights of Trustee . . . . . . . . 48
SECTION 904. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . 49
SECTION 905. May Hold Securities . . . . . . . . . . . 49
SECTION 906. Money Held in Trust . . . . . . . . . . . 49
SECTION 907. Compensation and Reimbursement . . . . . . 49
SECTION 908. Disqualification; Conflicting Interests. . 50
SECTION 909. Corporate Trustee Required; Eligibility . 51
SECTION 910. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . 51
SECTION 911. Acceptance of Appointment by Successor . . 53
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . 54
SECTION 913. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . 55
SECTION 914. Co-trustees and Separate Trustees. . . . . 55
SECTION 915. Appointment of Authenticating Agent . . . 56
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . 58
Holders' Lists and Reports by Trustee and Company . . . . . . 58
SECTION 1001. Lists of Holders . . . . . . . . . . . . 58
SECTION 1002. Reports by Trustee and Company . . . . . 59
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . 59
Consolidation, Merger, Conveyance or Other Transfer . . . . 59
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms . . . . . . . . . . . . . . 59
SECTION 1102. Successor Corporation Substituted . . . . 60
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . 60
Supplemental Indentures . . . . . . . . . . . . . . . . . . . 60
SECTION 1201. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . 60
SECTION 1202. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . 62
SECTION 1203. Execution of Supplemental Indentures . . 64
SECTION 1204. Effect of Supplemental Indentures . . . . 64
SECTION 1205. Conformity With Trust Indenture Act . . . 64
SECTION 1206. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . 64
SECTION 1207. Modification Without Supplemental
Indenture . . . . . . . . . . . . . . . . 64
ARTICLE THIRTEEN . . . . . . . . . . . . . . . . . . . . . . 65
Meetings of Holders; Action Without Meeting . . . . . . . . . 65
SECTION 1301. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . 65
SECTION 1302. Call, Notice and Place of Meetings . . . 65
SECTION 1303. Persons Entitled to Vote at Meetings . . 66
SECTION 1304. Quorum; Action . . . . . . . . . . . . . 66
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment of
Meetings . . . . . . . . . . . . . . . . 67
SECTION 1306. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . 68
SECTION 1307. Action Without Meeting . . . . . . . . . 69
ARTICLE FOURTEEN . . . . . . . . . . . . . . . . . . . . . . 69
Immunity of Incorporators, Shareholders, Officers
and Directors . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1401. Liability Solely Corporate . . . . . . . 69
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . 70
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . 70
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . 71
<PAGE>
ENSERCH CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF , 1998
-------- --
TRUST INDENTURE ACT SECTION INDENTURE SECTION
<section sign>310 (a)(1) . . . . . . . . . . . . . . . . . 909
(a)(2) . . . . . . . . . . . . . . . . . 909
(a)(3) . . . . . . . . . . . . . . . . . 914
(a)(4) . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 908
910
<section sign>311 (a) . . . . . . . . . . . . . . . . . . . 913
(b) . . . . . . . . . . . . . . . . . . . 913
(c) . . . . . . . . . . . . . . . . . . . 913
<section sign>312 (a) . . . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . . 1001
<section sign>313 (a) . . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . . 1002
<section sign>314 (a) . . . . . . . . . . . . . . . . . . 1002
(a)(4) . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . 102
<section sign>315 (a) . . . . . . . . . . . . . . . . . . . 901
903
(b) . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . 901
(d) . . . . . . . . . . . . . . . . . . . 901
(e) . . . . . . . . . . . . . . . . . . . 814
<section sign>316 (a) . . . . . . . . . . . . . . . . . . . 812
813
(a)(1)(A) . . . . . . . . . . . . . . . . 802
812
(a)(1)(B) . . . . . . . . . . . . . . . . 813
(a)(2) . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 808
<section sign>317 (a)(1) . . . . . . . . . . . . . . . . . 803
(a)(2) . . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . . . . 603
<section sign>318 (a) . . . . . . . . . . . . . . . . . . . 107
<PAGE>
INDENTURE, dated as of , 1998, between
-------- --
ENSERCH CORPORATION, a corporation duly organized and existing
under the laws of the State of Texas (herein called the
"Company"), having its principal office at 1601 Bryan Street,
Dallas, Texas 75201, and THE BANK OF NEW YORK, a banking
corporation of the State of New York, having its principal
corporate trust office at 101 Barclay Street, New York, New York
10286, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), in an unlimited
aggregate principal amount to be issued in one or more series as
contemplated herein; and all acts necessary to make this
Indenture a valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of any series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, 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 terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United States,
and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United
States at the date of such computation or, at the election of
the Company from time to time, at the date of the execution
and delivery of this Indenture; provided, however, that in
determining generally accepted accounting principles
applicable to the Company, the Company shall, to the extent
required, conform to any order, rule or regulation of any
administrative agency, regulatory authority or other govern-
mental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are de-
fined in that Article.
"ACT", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"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 through
one or more intermediaries, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee
pursuant to Section 915 to act on behalf of the Trustee to
authenticate one or more series of Securities.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other officer or agent of the Company duly
authorized by the Board of Directors to act in respect of matters
relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of directors
of the Company or any committee thereof duly authorized to act in
respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered
to the Trustee.
"BUSINESS DAY", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commis-
sion, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, per-
forming such duties at such time.
"COMPANY" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written re-
quest or order signed in the name of the Company by an Authorized
Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee
at which at any particular time its corporate trust business
shall be principally administered, which office at the date of
execution and delivery of this Indenture is located at 101
Barclay Street, New York, New York 10286.
"CORPORATION" means a corporation, association, company,
joint stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section
307.
"DISCOUNT SECURITY" means any Security which provides for
an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802. "Interest" with respect to a
Discount Security means interest, if any, borne by such Security
at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect
to such Securities, as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section
801.
"GOVERNMENTAL AUTHORITY" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any of the foregoing, or any department,
agency, authority or other instrumentality of any of the
foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by,
the United States and entitled to the benefit of the full
faith and credit thereof; and
(b) certificates, depositary receipts or other in-
struments which evidence a direct ownership interest in obli-
gations described in clause (a) above or in any specific
interest or principal payments due in respect thereof;
provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or
trust company (which may include the Trustee or any Paying
Agent) subject to Federal or state supervision or examination
with a combined capital and surplus of at least $50,000,000;
and provided, further, that except as may be otherwise
required by law, such custodian shall be obligated to pay to
the holders of such certificates, depositary receipts or other
instruments the full amount received by such custodian in
respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"HOLDER" means a Person in whose name a Security is registered
in the Security Register.
"INDENTURE" means this instrument as originally executed and
delivered and as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall
include the terms of a particular series of Securities
established as contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"MATURITY", when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as provided in such Security or
in this Indenture, whether at the Stated Maturity, by declaration
of acceleration, upon call for redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Company, or other counsel acceptable to
the Trustee.
"OUTSTANDING", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled or delivered to the
Security Registrar for cancellation;
(b) Securities deemed to have been paid in accordance
with Section 701; and
(c) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any series
or Tranche, have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such
obligor owns all Securities Outstanding under this Indenture,
or (except for the purposes of actions to be taken by Holders
of (i) more than one series voting as a class under Section
812 or (ii) more than one series or more than one Tranche, as
the case may be, voting as a class under Section 1202) all
Outstanding Securities of each such series and each such
Tranche, as the case may be, determined without regard to this
clause (x)) shall be disregarded and deemed not to be Out-
standing, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon
any such determination as to the presence of a quorum, only
Securities which the Trustee knows to be so owned shall be so
disregarded; provided, however, that Securities so owned which
have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such
other obligor; and
(y) the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and
payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such Security
that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount
thereof less the aggregate amount of principal thereof
theretofore paid.
"PAYING AGENT" means any Person, including the Company,
authorized by the Company to pay the principal of, and premium,
if any, or interest, if any, on any Securities on behalf of the
Company.
"PERIODIC OFFERING" means an offering of Securities of a
series from time to time any or all of the specific terms of
which Securities, including without limitation the rate or rates
of interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon
the issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint
venture, trust or unincorporated organization or any Governmental
Authority.
"PLACE OF PAYMENT", when used with respect to the Securities
of any series, or any Tranche thereof, means the place or places,
specified as contemplated by Section 301, at which, subject to
Section 602, principal of and premium, if any, and interest, if
any, on the Securities of such series or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered
under Section 306 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed (to the extent
lawful) to evidence the same debt as the mutilated, destroyed,
lost or stolen Security.
"REDEMPTION DATE", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"SECURITIES" has the meaning stated in the first recital of
this Indenture and more particularly means any securities authen-
ticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by
the Trustee pursuant to Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear
simple interest. Any calculation or other determination to be
made under this Indenture by reference to the Stated Interest
Rate on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard
to the Stated Interest Rate on, or the effective cost to the
Company of, any other indebtedness in respect of which the
Company's obligations are evidenced or secured in whole or in
part by such Security.
"STATED MATURITY", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means
the date on which the principal of such obligation or such
installment of principal or interest is stated to be due and
payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"TRANCHE" means a group of Securities which (a) are of the
same series and (b) have identical terms except as to principal
amount and/or date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in effect at
such time.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have
become such with respect to one or more series of Securities
pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities
of that series.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture,
upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the
Company shall, if requested by the Trustee, furnish to the
Trustee an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action (including any covenants compliance with which
constitutes a condition precedent) have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to
which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each Person signing such cer-
tificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
Person, such Person has made such examination or investigation
as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such Person, such condition or covenant has been complied
with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which such Officer's Certificate or
opinion are based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or
other document or instrument, a clerical, typographical or other
inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be
deemed to have been executed and/or delivered as of the date or
dates required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to the
contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the
request of the Company which could not have been taken had the
original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, election, waiver or other action provided by
this Indenture to be made, given or taken by Holders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing or, alternatively,
may be embodied in and evidenced by the record of Holders
voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called
and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of
a Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 901) conclusive in favor of
the Trustee and the Company, if made in the manner provided in
this Section. The record of any meeting of Holders shall be
proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof or may be proved in any other manner which
the Trustee and the Company deem sufficient. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority.
(c) The principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the
definition of Outstanding) and serial numbers of Securities
held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) Any request, demand, authorization, direction, no-
tice, consent, election, waiver or other Act of a Holder shall
bind every future Holder of the same Security and the Holder
of every 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
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(e) Until such time as written instruments shall have
been delivered to the Trustee with respect to the requisite
percentage of principal amount of Securities for the action
contemplated by such instruments, any such instrument executed
and delivered by or on behalf of a Holder may be revoked with
respect to any or all of such Securities by written notice by
such Holder or any subsequent Holder, proven in the manner in
which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and
shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform,
in the opinion of the Trustee and the Company, to such action
may be prepared and executed by the Company and authenticated
and delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any
request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, fix in
advance a record date for the determination of Holders
entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or
after such record date, but only the Holders of record at the
close of business on the record date shall be deemed to be
Holders for the purposes of determining whether Holders of the
requisite proportion of the Outstanding Securities have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be
computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered personally to an
officer or other responsible employee of the addressee, or
transmitted by facsimile transmission or other direct written
electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to
time designate, or transmitted by certified or registered mail,
charges prepaid, to the applicable address set opposite such
party's name below or to such other address as either party
hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street - 21W
New York, New York 10286
Attention: Vice President, Corporate Trust
Administration
Telephone: (212) 815-5375
Telecopy: (212) 815-5915
If to the Company, to:
ENSERCH Corporation
1601 Bryan Street
Dallas, Texas 75201
Attention:
----------
Telephone:
Telecopy:
Any communication contemplated herein shall be deemed to
have been made, given, furnished and filed if personally
delivered, on the date of delivery, if transmitted by facsimile
transmission or other direct written electronic means, on the
date of transmission, and if transmitted by certified or
registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest
date, if any, and not earlier than the earliest date, if any,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail serv-
ice or by reason of any other cause it shall be impracticable to
give such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either
before or after the event otherwise to be specified therein, and
such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Indenture by, or is otherwise
governed by, any of the provisions of the Trust Indenture Act,
such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
Company and Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities
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 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, EXCEPT TO THE EXTENT THAT THE LAW OF ANY OTHER JURISDICTION
SHALL BE MANDATORILY APPLICABLE.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
provision in Securities of any series, or any Tranche thereof, or
in the Board Resolution or Officer's Certificate which
establishes the terms of the Securities of such series or
Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at
such Place of Payment, with the same force and effect, and in the
same amount, as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, as the case may be,
and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the
indenture supplemental hereto establishing such series or in a
Board Resolution establishing such series, or in an Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or
forms of Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board
Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Sections
301 or 1201(g), the Securities of each series shall be issuable
in registered form without coupons. The definitive Securities
shall be produced in such manner as shall be determined by the
officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-
mentioned Indenture.
Dated:
---------------------------------
as Trustee
By:
-----------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
Subject to the last paragraph of this Section, prior to the
authentication and delivery of Securities of any series there
shall be established by specification in a supplemental indenture
or in a Board Resolution, or in an Officer's Certificate pursuant
to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from
Securities of all other series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 304, 305, 306, 406 or 1206 and
except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered
hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of such series,
or any Tranche thereof, shall be payable on any Interest
Payment Date, if other than the Persons in whose names such
Securities (or one or more Predecessor Securities) are
registered at the close of business on the Regular Record Date
for such interest;
(d) the date or dates on which the principal of the
Securities of such series, or any Tranche thereof, is payable
or any formulary or other method or other means by which such
date or dates shall be determined, by reference to an index or
other fact or event ascertainable outside of this Indenture or
otherwise (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal shall
bear interest, if different from the rate or rates at which
such Securities shall bear interest prior to Maturity, and, if
applicable, the rate or rates at which overdue premium or
interest shall bear interest, if any), or any formulary or
other method or other means by which such rate or rates shall
be determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise; the date
or dates from which such interest shall accrue; the Interest
Payment Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on such
Securities on any Interest Payment Date; and the basis of
computation of interest, if other than as provided in Section
310;
(f) the place or places at which or methods by which (1)
the principal of and premium, if any, and interest, if any, on
Securities of such series, or any Tranche thereof, shall be
payable, (2) registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (3) exchanges
of Securities of such series, or any Tranche thereof, may be
effected and (4) notices and demands to or upon the Company in
respect of the Securities of such series, or any Tranche
thereof, and this Indenture may be served; the Security
Registrar for such series or Tranche; and if such is the case,
that the principal of such Securities shall be payable without
presentment or surrender thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms and
conditions upon which the Securities of such series, or any
Tranche thereof, may be redeemed, in whole or in part, at the
option of the Company and any restrictions on such
redemptions, including but not limited to a restriction on a
partial redemption by the Company of the Securities of any
series, or any Tranche thereof, resulting in delisting of such
Securities from any national exchange;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such series,
or any Tranche thereof, pursuant to any sinking fund or other
mandatory redemption provisions or at the option of a Holder
thereof and the period or periods within which or the date or
dates on which, the price or prices at which and the terms and
conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation,
and applicable exceptions to the requirements of Section 404
in the case of mandatory redemption or redemption at the
option of the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if other
than denominations of $1,000 and any integral multiple
thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premium,
if any, and interest, if any, on the Securities of such
series, or any Tranche thereof, shall be payable (if other
than in Dollars);
(k) if the principal of or premium, if any, or interest,
if any, on the Securities of such series, or any Tranche
thereof, are to be payable, at the election of the Company or
a Holder thereof, in a coin or currency other than that in
which the Securities are stated to be payable, the period or
periods within which and the terms and conditions upon which,
such election may be made;
(l) if the principal of or premium, if any, or interest,
if any, on the Securities of such series, or any Tranche
thereof, are to be payable, or are to be payable at the
election of the Company or a Holder thereof, in securities or
other property, the type and amount of such securities or
other property, or the formulary or other method or other
means by which such amount shall be determined, and the period
or periods within which, and the terms and conditions upon
which, any such election may be made;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Securities of
such series, or any Tranche thereof, may be determined with
reference to an index or other fact or event ascertainable
outside of this Indenture, the manner in which such amounts
shall be determined to the extent not established pursuant to
clause (e) of this paragraph;
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of such series,
or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, with respect to the Securities of
such series, and any covenants of the Company for the benefit
of the Holders of the Securities of such series, or any
Tranche thereof, in addition to those set forth in Article
Six;
(p) the terms, if any, pursuant to which the Securities
of such series, or any Tranche thereof, may be converted into
or exchanged for shares of capital stock or other securities
of the Company or any other Person;
(q) the obligations or instruments, if any, which shall
be considered to be Eligible Obligations in respect of the
Securities of such series, or any Tranche thereof, denominated
in a currency other than Dollars or in a composite currency,
and any additional or alternative provisions for the
reinstatement of the Company's indebtedness in respect of such
Securities after the satisfaction and discharge thereof as
provided in Section 701;
(r) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any limitations
on the rights of the Holder or Holders of such Securities to
transfer or exchange the same or to obtain the registration of
transfer thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates therefor in
definitive form in lieu of temporary form and (iii) any and
all other matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and all
matters incidental thereto which are not specifically
addressed in a supplemental indenture as contemplated by
clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r)
of this paragraph, any limitations on the rights of the
Holders of the Securities of such Series, or any Tranche
thereof, to transfer or exchange such Securities or to obtain
the registration of transfer thereof; and if a service charge
will be made for the registration of transfer or exchange of
Securities of such series, or any Tranche thereof, the amount
or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of
such series, or any Tranche thereof; and
(v) any other terms of the Securities of such series, or
any Tranche thereof, not inconsistent with the provisions of
this Indenture.
With respect to Securities of a series subject to a
Periodic Offering, the indenture supplemental hereto or the Board
Resolution which establishes such series, or the Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general terms or
parameters for Securities of such series and provide either that
the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms
shall be determined by the Company or its agents in accordance
with procedures specified in a Company Order as contemplated by
the clause (b) of Section 303.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof,
the Securities of each series shall be issuable in denominations
of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof,
the Securities shall be executed on behalf of the Company by an
Authorized Officer and may have the corporate seal of the Company
affixed thereto or reproduced thereon attested by any other
Authorized Officer or by the Secretary or an Assistant Secretary
of the Company. The signature of any or all of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers
or the Secretary or an Assistant Secretary of the Company shall
bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at
the date of such Securities.
The Trustee shall authenticate and deliver Securities of
a series, for original issue, at one time or from time to time in
accordance with the Company Order referred to below, upon receipt
by the Trustee of:
(a) the instrument or instruments establishing the form
or forms and terms of such series, as provided in Sections 201
and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms
of such Securities shall not have been established in an
indenture supplemental hereto or in a Board Resolution, or in
an Officer's Certificate pursuant to a supplemental indenture
or Board Resolution, all as contemplated by Sections 201 and
301, either (i) establishing such terms or (ii) in the case of
Securities of a series subject to a Periodic Offering,
specifying procedures, acceptable to the Trustee, by which
such terms are to be established (which procedures may
provide, to the extent acceptable to the Trustee, for
authentication and delivery pursuant to oral or electronic
instructions from the Company or any agent or agents thereof,
which oral instructions are to be promptly confirmed
electronically or in writing), in either case in accordance
with the instrument or instruments delivered pursuant to
clause (a) above;
(c) the Securities of such series, executed on behalf of
the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have been
duly authorized by the Company and have been established
in conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) such Securities, when authenticated and
delivered by the Trustee and issued and delivered by the
Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute valid and
legally binding obligations of the Company, entitled to
the benefits provided by this Indenture, and enforceable
in accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including, without
limitation, bankruptcy and insolvency laws and to general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or
at law);
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication of such Securities (provided that
such Opinion of Counsel addresses the authentication and delivery
of all Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above Counsel may
opine that:
(x) when the terms of such Securities shall have
been established pursuant to a Company Order or Orders or
pursuant to such procedures (acceptable to the Trustee)
as may be specified from time to time by a Company Order
or Orders, all as contemplated by and in accordance with
the instrument or instruments delivered pursuant to
clause (a) above, such terms will have been duly
authorized by the Company and will have been established
in conformity with the provisions of this Indenture; and
(y) such Securities, when authenticated and
delivered by the Trustee in accordance with this
Indenture and the Company Order or Orders or specified
procedures referred to in paragraph (x) above and issued
and delivered by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by the
Indenture, and enforceable in accordance with their
terms, subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors' rights,
including, without limitation, bankruptcy and insolvency
laws, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding
in equity or at law).
With respect to Securities of a series subject to a Peri-
odic Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the form,
terms thereof and the legality, validity, binding effect and en-
forceability thereof, and compliance of the authentication and
delivery thereof with the terms and conditions of this Indenture,
upon the Opinion of Counsel and other documents delivered
pursuant to Sections 201 and 301 and this Section, as applicable,
at or prior to the time of the first authentication of Securities
of such series unless and until such opinion or other documents
have been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Securities of
a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to
authenticate and deliver such Securities do not violate any
applicable law or any applicable rule, regulation or order of any
Governmental Authority having jurisdiction over the Company.
If the form or terms of the Securities of any series have
been established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Indenture will
materially or adversely affect the Trustee's own rights, duties
or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the
Trustee.
Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof,
each Security shall be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, no Security shall be
entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form
provided for herein executed by the Trustee or an Authenticating
Agent by manual signature, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and
delivered hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the defi-
nitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche
thereof, after the preparation of definitive Securities of such
series or Tranche, the temporary Securities of such series or
Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of temporary
Securities for such exchange, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and deliver
in exchange therefor definitive Securities of the same series and
Tranche of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of
the same series and Tranche and of like tenor authenticated and
delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in each office
designated pursuant to Section 602, with respect to the
Securities of each series, a register (all registers kept in
accordance with this Section being collectively referred to as
the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities of such series, or any Tranche
thereof, and the registration of transfer thereof. The Company
shall designate one Person to maintain the Security Register for
the Securities of each series on a consolidated basis, and such
Person is referred to herein, with respect to such series, as the
"Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one or more of its
offices as an office in which a register with respect to the
Securities of one or more series shall be maintained, and the
Company may designate itself the Security Registrar with respect
to one or more of such series. The Security Register shall be
open for inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, upon surrender for registration of transfer of any
Security of such series or Tranche at the office or agency of the
Company maintained pursuant to Section 602 in a Place of Payment
for such series or Tranche, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities
of the same series and Tranche, of authorized denominations and
of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, any Security of such series or Tranche may be exchanged
at the option of the Holder, for one or more new Securities of
the same series and Tranche, of authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the
Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company,
the Trustee or the Security Registrar) be duly endorsed or shall
be accompanied by a written instrument of transfer in form sat-
isfactory to the Company, the Trustee or the Security Registrar,
as the case may be, duly executed by the Holder thereof or his
attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301
with respect to Securities of any series, or any Tranche thereof,
no service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant
to Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange of
(a) Securities of any series, or any Tranche thereof, during a
period of 15 days immediately preceding the date notice is to be
given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series
and Tranche, and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trus-
tee (a) evidence to their satisfaction of the ownership of and
the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such
Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and Tranche,
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the
fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone other than the Holder
of such new Security, and any such new Security shall be entitled
to all the benefits of this Indenture equally and proportionately
with any and all other Securities of such series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche
thereof, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the related
Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Secu-
rities of such series (or their respective Predecessor
Securities) are registered at the close of business on a date
(herein called a "Special Record Date") for the payment of
such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense
of the Company, shall promptly cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address of such
Holder as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the pro-
posed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Secu-
rities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date.
(b) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such
Security is registered as the absolute owner of such Security for
the purpose of receiving payment of principal of and premium, if
any, and (subject to Sections 305 and 307) interest, if any, on
such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be
promptly canceled by the Security Registrar. The Company may at
any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all Securities so
delivered shall be promptly canceled by the Security Registrar.
No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed of in
accordance with a Company Order delivered to the Security
Registrar and the Trustee, and the Security Registrar shall
promptly deliver a certificate of disposition to the Trustee and
the Company unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned to it.
The Security Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this Section 309 to
the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section
301 for Securities of any series, or any Tranche thereof,
interest on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months
and for any period shorter than a full month, on the basis of the
actual number of days elapsed in such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars
or in a composite currency (the "Required Currency"), except as
otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to
make any payment of the principal thereof, or the premium or
interest thereon, shall not be discharged or satisfied by any
tender by the Company, or recovery by the Trustee, in any
currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely
holding the full amount of the Required Currency then due and
payable. If any such tender or recovery is in a currency other
than the Required Currency, the Trustee may take such actions as
it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in the full
amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor except in the
case of its negligence or willful misconduct.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Offi-
cer's Certificate evidencing compliance with such restriction or
condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to
be redeemed shall be selected by the Trustee from the Outstanding
Securities of such series or Tranche not previously called for
redemption, by such method as shall be provided for any
particular series, or, in the absence of any such provision, by
such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of
such series or Tranche or any integral multiple thereof) of the
principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if,
as indicated in an Officer's Certificate, the Company shall have
offered to purchase all or any principal amount of the Securities
then Outstanding of any series, or any Tranche thereof, and less
than all of such Securities as to which such offer was made shall
have been tendered to the Company for such purchase, the Trustee,
if so directed by Company Order, shall select for redemption all
or any principal amount of such Securities which have not been so
tendered.
The Trustee shall promptly notify the Company and the
Security Registrar in writing of the Securities selected for
redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner pro-
vided in Section 106 to the Holders of the Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the
particular Securities to be redeemed and the portion of the
principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities
that such surrender shall not be required,
(f) that the redemption is for a sinking or other fund,
if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any Securities
in accordance with Section 301, with respect to any notice of
redemption of Securities at the election of the Company, unless,
upon the giving of such notice, such Securities shall be deemed
to have been paid in accordance with Section 701, such notice may
state that such redemption shall be conditional upon the receipt
by the Paying Agent or Agents for such Securities, on or prior to
the date fixed for such redemption, of money sufficient to pay
the principal of and premium, if any, and interest, if any, on
such Securities and that if such money shall not have been so
received such notice shall be of no force or effect and the
Company shall not be required to redeem such Securities. In the
event that such notice of redemption contains such a condition
and such money is not so received, the redemption shall not be
made and within a reasonable time thereafter notice shall be
given, in the manner in which the notice of redemption was given,
that such money was not so received and such redemption was not
required to be made, and the Paying Agent or Agents for the
Securities otherwise to have been redeemed shall promptly return
to the Holders thereof any of such Securities which had been
surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a
condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Security Registrar
in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and
the conditions, if any, set forth in such notice having been sat-
isfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any authorized
denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of any series,
or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series, or any
Tranche thereof, is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any
series, or any Tranche thereof, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section
502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of
which it was made as provided for by the terms of such
Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series or Tranche in respect of which a mandatory sinking fund
payment is to be made and (b) may apply as a credit Securities of
such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of such mandatory sinking fund
payment with respect to the Securities of such series; provided,
however, that no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall have been
previously so applied. Securities so applied shall be received
and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment
date for the Securities of any series, or any Tranche thereof,
the Company shall deliver to the Trustee an Officer's Certificate
specifying:
(a) the amount of the next succeeding mandatory sinking
fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting
Securities of such series or Tranche pursuant to Section 502
and stating the basis for such credit and that such Securities
have not previously been so credited, and the Company shall
also deliver to the Trustee any Securities to be so delivered.
If the Company shall not deliver such Officer's Certificate,
the next succeeding sinking fund payment for such series shall
be made entirely in cash in the amount of the mandatory
sinking fund payment. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 403 and cause notice of the
redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 404.
Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner
stated in Sections 405 and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for
the Securities of each series, or any Tranche thereof, an office
or agency where payment of such Securities shall be made, where
the registration of transfer or exchange of such Securities may
be effected and where notices and demands to or upon the Company
in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of each such office
or agency and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the Company
shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or
shall fail to furnish the Trustee with the address thereof,
payment of such Securities shall be made, registration of
transfer or exchange thereof may be effected and notices and
demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the
Trustee as its agent for all such purposes in any such event.
The Company may also from time to time designate one or
more other offices or agencies with respect to the Securities of
one or more series, or any Tranche thereof, for any or all of the
foregoing purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of
such series or Tranche, no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency for such purposes in each Place of Payment
for such Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to the
Trustee, and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and of any
change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an
office of the Company, in which event the Company shall perform
all functions to be performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying
Agent with respect to the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on any of
such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided. The Company shall promptly notify the Trustee of any
failure by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents
for the Securities of any series, or any Tranche thereof, it
shall, on or before each due date of the principal of and
premium, if any, and interest, if any, on such Securities,
deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so
becoming due, such sums to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than the
Company or the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such
Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on such
Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if so stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Seven; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the
principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or, if
then held by the Company, shall be discharged from such trust;
and, upon such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for payment of the
amount so due and payable and remaining unpaid, and all liability
of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to
the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will
be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may
be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than June 1 in each year, commencing June 1,
1998, the Company shall deliver to the Trustee an Officer's
Certificate which need not comply with Section 102, executed by
the principal executive officer, the principal financial officer
or the principal accounting officer of the Company, as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such compliance to
be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in (a) Section
602 or any additional covenant or restriction specified with
respect to the Securities of any series, or any Tranche thereof,
as contemplated by Section 301, if before the time for such
compliance the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches
with respect to which compliance with Section 602 or such
additional covenant or restriction is to be omitted, considered
as one class, shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition and (b) Section 604, 605 or
Article Eleven if before the time for such compliance the Holders
of a majority in principal amount of Securities Outstanding under
this Indenture shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition; but, in the case of (a) or
(b), no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and
effect.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company in respect thereof shall be deemed to have been
satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the
Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity
of such Securities or portions thereof, Eligible Obligations,
which shall not contain provisions permitting the redemption
or other prepayment thereof at the option of the issuer
thereof, the principal of and the interest on which when due,
without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with
or held by the Trustee or such Paying Agent, shall be
sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or
portions thereof on or prior to Maturity; provided, however, that
in the case of the provision for payment or redemption of less
than all the Securities of any series or Tranche, such Securities
or portions thereof shall have been selected by the Trustee as
provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been
given or irrevocable authority shall have been given by the
Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee and such Paying
Agent:
(x) if such deposit shall have been made prior to
the Maturity of such Securities, a Company Order stating
that the money and Eligible Obligations deposited in
accordance with this Section shall be held in trust, as
provided in Section 703; and
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the obligations so
deposited constitute Eligible Obligations and do not
contain provisions permitting the redemption or other
prepayment at the option of the issuer thereof, and an
opinion of an independent public accountant of nationally
recognized standing, selected by the Company, to the
effect that the requirements set forth in clause (b)
above have been satisfied; and
(z) if such deposit shall have been made prior to
the Maturity of such Securities, an Officer's Certificate
stating the Company's intention that, upon delivery of
such Officer's Certificate, its indebtedness in respect
of such Securities or portions thereof will have been
satisfied and discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or
both, in accordance with this Section, together with the
documents required by clauses (x), (y) and (z) above, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
that the Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness
of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that
all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z) shall not have been delivered, such
Securities or portions thereof shall nevertheless be deemed to
have been paid for all purposes of this Indenture, and the
Holders of such Securities or portions thereof shall nevertheless
be no longer entitled to the benefits of this Indenture or of any
of the covenants of the Company under Article Six (except the
covenants contained in Sections 602 and 603) or any other
covenants made in respect of such Securities or portions thereof
as contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof shall
not be deemed to have been satisfied and discharged prior to
Maturity for any other purpose, and the Holders of such
Securities or portions thereof shall continue to be entitled to
look to the Company for payment of the indebtedness represented
thereby; and, upon Company Request, the Trustee shall acknowledge
in writing that such Securities or portions thereof are deemed to
have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be
provided for in the manner and with the effect provided in this
Section, the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the
Securities of a series or Tranche.
In the event that Securities which shall be deemed to
have been paid for purposes of this Indenture, and, if such is
the case, in respect of which the Company's indebtedness shall
have been satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within the 60
day period commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has
been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to
have been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 503 (as to notice
of redemption), 602, 603, 907 and 915 and this Article Seven
shall survive.
The Company shall pay, and shall indemnify the Trustee or
any Paying Agent with which Eligible Obligations shall have been
deposited as provided in this Section against, any tax, fee or
other charge imposed on or assessed against such Eligible
Obligations or the principal or interest received in respect of
such Eligible Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes, to have
been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if,
at any time after a Security would be deemed to have been paid
for purposes of this Indenture, and, if such is the case, the
Company's indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section (without
regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, shall be required to return the
money or Eligible Obligations, or combination thereof, deposited
with it as aforesaid to the Company or its representative under
any applicable Federal or State bankruptcy, insolvency or other
similar law, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction and
discharge of the Company's indebtedness in respect thereof shall
retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's indebtedness in
respect of any Security shall be subject to the provisions of the
last paragraph of Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph
of Section 701, any Security, previously deemed to have been paid
for purposes of this Indenture, shall be deemed retroactively not
to have been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee
shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the
Trustee under Sections 304, 305, 306, 404, 503 (as to notice of
redemption), 602, 603, 907 and 915 and this Article Seven shall
survive.
Upon satisfaction and discharge of this Indenture as pro-
vided in this Section, the Trustee shall assign, transfer and
turn over to the Company, subject to the lien provided by Section
907, any and all money, securities and other property then held
by the Trustee for the benefit of the Holders of the Securities
other than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 701, nor the principal or interest payments
on any such Eligible Obligations, shall be withdrawn or used for
any purpose other than, and shall be held in trust for, the
payment of the principal of and premium, if any, and interest, if
any, on the Securities or portions of principal amount thereof in
respect of which such deposit was made, all subject, however, to
the provisions of Section 603; provided, however, that, so long
as there shall not have occurred and be continuing an Event of
Default, any cash received from such principal or interest
payments on such Eligible Obligations, if not then needed for
such purpose, shall, to the extent practicable and upon Company
Request, be invested in Eligible Obligations of the type
described in clause (b) in the first paragraph of Section 701
maturing at such times and in such amounts as shall be
sufficient, together with any other moneys and the principal of
and interest on any other Eligible Obligations then held by the
Trustee, to pay when due the principal of and premium, if any,
and interest, if any, due and to become due on such Securities or
portions thereof on and prior to the Maturity thereof, and inter-
est earned from such reinvestment shall be paid over to the
Company as received, free and clear of any trust, lien or pledge
under this Indenture except the lien provided by Section 907; and
provided, further, that, so long as there shall not have occurred
and be continuing an Event of Default, any moneys held in
accordance with this Section on the Maturity of all such
Securities in excess of the amount required to pay the principal
of and premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company free and clear of
any trust, lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that if an Event
of Default shall have occurred and be continuing, moneys to be
paid over to the Company pursuant to this Section shall be held
until such Event of Default shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(a) failure to pay interest, if any, on any Security of
such series within 30 days after the same becomes due and pay-
able; or
(b) failure to pay the principal of or premium, if any,
on any Security of such series at its Maturity; or
(c) failure to perform or breach of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which or
breach of which is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 90 days
after there has been given, by registered or certified mail,
to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in principal amount of
the Outstanding Securities of such series, 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, unless the Trustee, or the Trustee and the Holders
of a principal amount of Securities of such series not less
than the principal amount of Securities the Holders of which
gave such notice, as the case may be, shall agree in writing
to an extension of such period prior to its expiration;
provided, however, that the Trustee, or the Trustee and the
Holders of such principal amount of Securities of such series,
as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is initiated by
the Company within such period and is being diligently
pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any appli-
cable Federal or State bankruptcy, insolvency, reorganization
or other similar law or (2) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly
filed a petition by one or more Persons other than the Company
seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for
the Company or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and any
such decree or order for relief or any such other decree or
order shall have remained unstayed and in effect for a period
of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case
or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in a case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company 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, or the authorization of such action by the
Board of Directors; or
(f) any other Event of Default specified with respect to
Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default due to the default in payment of
principal of, or interest on, any series of Securities or due to
the default in the performance or breach of any other covenant or
warranty of the Company applicable to the Securities of such
series but not applicable to all Outstanding Securities shall
have occurred and be continuing, either the Trustee or the
Holders of not less than 33% in principal amount of the
Securities of such series may then declare the principal amount
(or, if any of the Securities of such series are Discount
Securities, such portion of the principal amount as may be
specified in the terms thereof as contemplated by Section 301) of
all Securities of such series and interest accrued thereon to be
due and payable immediately. If an Event of Default due to
default in the performance of any other of the covenants or
agreements herein applicable to all Outstanding Securities or an
Event of Default specified in Section 801(d) or (e) shall have
occurred and be continuing, either the Trustee or the Holders of
not less than 33% in principal amount of all Securities then
Outstanding (considered as one class), and not the Holders of the
Securities of any one of such series, may declare the principal
of all Securities and interest accrued thereon to be due and
payable immediately. As a consequence of each such declaration
(herein referred to as a declaration of acceleration) with
respect to Securities of any series, the principal amount (or
portion thereof in the case of Discount Securities) of such
Securities and interest accrued thereon shall become due and
payable immediately.
At any time after such a declaration of acceleration with
respect to Securities of any series shall have been made and
before a judgment or decree for payment of the money due shall
have been obtained by the Trustee as hereinafter in this Article
provided, the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act, be deemed
to have been waived, and such declaration and its consequences
shall, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest on all Securities of such
series;
(2) the principal of and premium, if any, on any
Securities of such series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Securities;
(3) to the extent that payment of such interest is
lawful, interest upon overdue interest, if any, at the
rate or rates prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section
907;
and
(b) any other Event or Events of Default with respect to
Securities of such series, other than the nonpayment of the
principal of Securities of such series which shall have become
due solely by such declaration of acceleration, shall have
been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of
Section 801 shall have occurred and be continuing, the Company
shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities of the series with respect to which
such Event of Default shall have occurred, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law,
interest on any overdue principal and interest, at the rate or
rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover any
amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company
or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for
amounts due to the Trustee under Section 907) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Arti-
cle shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such
money on account of principal or premium, if any, or interest, if
any, upon presentation of the Securities in respect of which or
for the benefit of which such money shall have been collected and
the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 907;
SECOND: To the payment of the amounts then due and un-
paid upon the Securities for principal of and premium, if any,
and interest, if any, in respect of which or for the benefit
of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts
due and payable on such Securities for principal, premium, if
any, and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceed-
ing, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series in respect
of which an Event of Default shall have occurred and be
continuing, considered as one class, shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request
shall have been given to the Trustee during such 60-day period
by the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series in respect of which
an Event of Default shall have occurred and be continuing,
considered as one class;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Section 307) interest, if
any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the
consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee
and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be
continuing in respect of a series of Securities, the Holders of a
majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that such direction shall not be in conflict
with any rule of law or with this Indenture. The Trustee may
take any other action, deemed proper by the Trustee, which is not
inconsistent with any such direction. Before proceeding to
exercise any right or power hereunder at the direction of such
Holders, the Trustee shall be entitled to receive from such
Holders reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with any such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf
of the Holders of all the Securities of such series waive any
past default hereunder with respect to such series and its
consequences, except a default
(a) in the payment of the principal of or premium, if
any, or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist,
and any and all Events of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his
acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reason-
able attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to
any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than
10% in aggregate principal amount of the Outstanding Securities
of all series in respect of which such suit may be brought,
considered as one class, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of or
premium, if any, or interest, if any, on any Security on or after
the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption, on or after the Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to all the
duties and responsibilities specified with respect to an
indenture trustee in the Trust Indenture Act and no implied
covenants or obligations shall be read into this Indenture
against the Trustee. For purposes of Sections 315(a) and
315(c) of the Trust Indenture Act, the term "default" is
hereby defined as an Event of Default which has occurred and
is continuing.
(b) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(c) Notwithstanding anything contained in this Indenture
to the contrary, the duties and responsibilities of the
Trustee under this Indenture shall be subject to the
protections, exculpations and limitations on liability
afforded to the Trustee under the provisions of the Trust
Indenture Act.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder
with respect to the Securities of any series to the Holders of
Securities of such series in the manner and to the extent
required to do so by the Trust Indenture Act, unless such default
shall have been cured or waived; provided, however, that in the
case of any default of the character specified in Section 801(c),
no such notice to Holders shall be given until at least 45 days
after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or
lapse of time, or both, would become, an Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document reasonably believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order, or as otherwise expressly provided herein, and
any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel 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;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at
the request or direction of any Holder pursuant to this
Indenture, unless such Holder shall have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall (subject to
applicable legal requirements) be entitled to examine, during
normal business hours, the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys, and the Trustee shall not
be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder;
and
(h) the Trustee shall not be charged with knowledge of
any default or Event of Default, as the case may be, with
respect to the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer of the
Trustee shall have actual knowledge of the default or Event of
Default, as the case may be, or (2) written notice of such
default or Event of Default, as the case may be, shall have
been given to the Trustee by the Company, any other obligor on
such Securities or by any Holder of such Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities (ex-
cept the Trustee's certificates of authentication) shall be taken
as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes responsibility for their correct-
ness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 908 and 913, may
otherwise deal with the Company with the same rights it would
have if it were not the Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by
law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit of, the
Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except
to the extent that any such expense, disbursement or advance
may be attributable to the Trustee's negligence, wilful
misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless from
and against, any loss, liability or expense reasonably
incurred by it arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder
or the performance of its duties hereunder, including the
reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except
to the extent any such loss, liability or expense may be
attributable to its negligence, wilful misconduct or bad
faith.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior
to the Securities upon all property and funds held or collected
by the Trustee as such other than property and funds held in
trust under Section 703 (except as otherwise provided in Section
703). "Trustee" for purposes of this Section shall include any
predecessor Trustee; provided, however, that the negligence,
wilful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 801(d)
or Section 801(e), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or State bankruptcy, insolvency or
other similar law.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee,
in its capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities
of any other series.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which
shall be
(a) a corporation organized and doing business under the
laws of the United States, any State or Territory thereof or
the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or
examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or
other Person organized and doing business under the laws of a
foreign government, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus
of at least $50,000,000 or the Dollar equivalent of the
applicable foreign currency and subject to supervision or
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable
requirements of Section 911.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 911 shall not have been
delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a
majority in principal amount of the Outstanding Securities of
such series delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
908 after written request therefor by the Company or by
any Holder who has been a bona fide Holder for at least
six months, or
(2) the Trustee shall cease to be eligible under
Section 909 and shall fail to resign after written re-
quest therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution
may remove the Trustee with respect to all Securities or
(y) subject to Section 814, any Holder who has been a bona
fide Holder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office
of Trustee for any cause (other than as contemplated in clause
(y) in subsection (d) of this Section), with respect to the
Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of
Section 911. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series
shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the succes-
sor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable
requirements of Section 911, become the successor Trustee with
respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf
of itself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default
shall have occurred and be continuing, and except with respect
to a Trustee appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities pursuant to
subsection (e) of this Section, if the Company shall have
delivered to the Trustee (i) a Board Resolution appointing a
successor Trustee, effective as of a date specified therein,
and (ii) an instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee in
accordance with Section 911, the Trustee shall be deemed to
have resigned as contemplated in subsection (b) of this
Section, the successor Trustee shall be deemed to have been
appointed by the Company pursuant to subsection (e) of this
Section and such appointment shall be deemed to have been
accepted as contemplated in Section 911, all as of such date,
and all other provisions of this Section and Section 911 shall
be applicable to such resignation, appointment and acceptance
except to the extent inconsistent with this subsection (f).
(g) The Company (or, should the Company fail so to act
promptly, the successor trustee at the expense of the Company)
shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and addresses appear
in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of
such series and the address of its corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, every
such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of all sums owed to it, execute
and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture
supplemental hereto wherein each successor 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 Trustee all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder
by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any succes-
sor Trustee, such retiring Trustee, upon payment of all sums
owed to it, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in and
confirm to such successor Trustee all such rights, powers and
trusts referred to in subsection (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture `Act:
(a) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose
of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship
with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or
obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company
and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least 33%
in principal amount of the Securities then Outstanding, the
Company shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such
powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Company
does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default
shall have occurred and be continuing, the Trustee alone shall
have power to make such appointment.
Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject
to the following conditions:
(a) the Securities shall be authenticated and delivered,
and all rights, powers, duties and obligations hereunder in
respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with,
the Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the Trustee
or by the 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 Trustee shall be incompetent or
unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Company, may
accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, if an Event of
Default shall have occurred and be continuing, the Trustee
shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of
the Company. Upon the written request of the Trustee, the
Company shall join with the Trustee in the execution and
delivery of all instruments and agreements necessary or proper
to effectuate such resignation or removal. A successor to any
co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be
deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents
with respect to the Securities of one or more series, or Tranche
thereof, which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series or Tranche
issued upon original issuance and upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States,
any State or territory thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Authenticating Agent 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 an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section, and the Trustee shall be entitled to be reimbursed
for such payments, in accordance with, and subject to the
provisions of, Section 907.
The provisions of Sections 308, 904 and 905 shall be ap-
plicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series shall be made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following
form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:
------------------------
As Trustee
By
----------------------
As Authenticating
Agent
By
----------------------
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not have
an office capable of authenticating Securities upon original
issuance located in a Place of Payment where the Company wishes
to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such
procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of
Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than June 1 and December 1 in
each year, commencing June 1, 1998, and at such other times as
the Trustee may request in writing, the Company shall furnish or
cause to be furnished to the Trustee information as to the names
and addresses of the Holders, and the Trustee shall preserve such
information and similar information received by it in any other
capacity and afford to the Holders access to information so
preserved by it, all to such extent, if any, and in such manner
as shall be required by the Trust Indenture Act; provided,
however, that no such list need be furnished so long as the
Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than November 1 in each year, commencing
November 1, 1998, the Trustee shall transmit to the Holders, the
Commission and each securities exchange upon which any Securities
are listed, a report, dated as of the next preceding September
15, with respect to any events and other matters described in
Section 313(a) of the Trust Indenture Act, in such manner and to
the extent required by the Trust Indenture Act. The Trustee
shall transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, and the Company
shall file with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to
the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such
manner, as shall be required by the Trust Indenture Act. The
Company shall notify the Trustee of the listing of any Securities
on any securities exchange.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge into any
other Person, or convey or otherwise transfer or lease its
properties and assets substantially as an entirety to any Person,
unless
(a) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
Person organized and validly existing under the laws of the
United States, any State thereof or the District of Columbia,
and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form sat-
isfactory to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on all
Outstanding Securities and the performance of every covenant
of this Indenture on the part of the Company to be per-
formed or observed;
(b) immediately after giving effect to such transaction
no Event of Default, and no event which, after notice or lapse
of time or both, would become an Event of Default, shall have
occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, or other transfer
or lease and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for
relating to such transactions have been complied with.
SECTION 1102. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation by the Company with or merger by
the Company into any other Person or any conveyance, or other
transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 1101, the
successor Person formed by such consolidation or into which the
Company is merged or the Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities, all as
provided in Article Eleven; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit
of the Holders of, or to remain in effect only so long as
there shall be Outstanding, Securities of one or more
specified series, or one or more specified Tranches thereof,
or to surrender any right or power herein conferred upon the
Company; or
(c) to add any additional Events of Default with respect
to all or any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Inden-
ture or to add any new provision to this Indenture; provided,
however, that if such change, elimination or addition shall
adversely affect the interests of the Holders of Securities of
any series or Tranche Outstanding on the date of such
indenture supplemental hereto in any material respect, such
change, elimination or addition shall become effective with
respect to such series or Tranche only pursuant to the
provisions of Section 1202 hereof or when no Security of such
series or Tranche remains Outstanding; or
(e) to provide collateral security for all but not part
of the Securities; or
(f) to establish the form or terms of Securities of any
series or Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the procedures
for the registration, exchange and replacement thereof and for
the giving of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all other
matters incidental thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee or
co-trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit the
Company to utilize, at its option, a noncertificated system of
registration for all, or any series or Tranche of, the Securi-
ties; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on all
or any series of Securities, or any Tranche thereof, shall be
payable, (2) all or any series of Securities, or any Tranche
thereof, may be surrendered for registration of transfer, (3)
all or any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and demands to or
upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be
served; or
(k) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with
any other provision herein, or to make any other changes to
the provisions hereof or to add other provisions with respect
to matters or questions arising under this Indenture, provided
that such other changes or additions shall not adversely
affect the interests of the Holders of Securities of any
series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the
Trust Indenture Act as in effect at the date of the execution and
delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein
of any additional provisions, or shall by operation of
law be deemed to effect such changes or incorporate such
provisions by reference or otherwise, this Indenture
shall be deemed to have been amended so as to conform to
such amendment to the Trust Indenture Act, and the
Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to
effect or evidence such changes or additional provisions;
or
(y) if any such amendment shall permit one or more
changes to, or the elimination of, any provisions hereof
which, at the date of the execution and delivery hereof
or at any time thereafter, are required by the Trust
Indenture Act to be contained herein, this Indenture
shall be deemed to have been amended to effect such
changes or elimination, and the Company and the Trustee
may, without the consent of any Holders, enter into an
indenture supplemental hereto to evidence such amendment
hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in
aggregate principal amount of the Securities of all series then
Outstanding under this Indenture, considered as one class, by Act
of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture or
modifying in any manner the rights of the Holders of Securities
of such series under the Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been
issued in more than one Tranche and if the proposed supplemental
indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches,
then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required;
and provided, further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security,
or reduce the principal amount thereof or the rate of interest
thereon (or the amount of any installment of interest thereon)
or change the method of calculating such rate or reduce any
premium payable upon the redemption thereof, or reduce the
amount of the principal of a Discount Security that would be
due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 802, or change the coin
or currency (or other property), in which any Security or any
premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity of any Security (or,
in the case of redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder of such
Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, or any Tranche thereof,
the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which
is required for any waiver of compliance with any provision of
this Indenture or of any default hereunder and its conse-
quences, or reduce the requirements of Section 1304 for quorum
or voting, without, in any such case, the consent of the
Holders of each Outstanding Security of such series or
Tranche, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of
any series, or any Tranche thereof, except to increase the
percentages in principal amount referred to in this Section or
such other Sections or to provide that other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b), 914 and
1201(h).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series
of Securities, or one or more Tranches thereof, or which modifies
the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not
to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof. A waiver by a Holder of
such Holder's right to consent under this Section shall be deemed
to be a consent of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
901) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by
this Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such restatement
shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities shall
have been established in a Board Resolution or an Officer's
Certificate as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or the
elimination of any of such terms may be effected by means of a
supplemental Board Resolution or Officer's Certificate, as the
case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or
Officer's Certificate shall not be accepted by the Trustee or
otherwise be effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately satisfied.
Upon the acceptance thereof by the Trustee, any such supplemental
Board Resolution or Officer's Certificate shall be deemed to be a
"supplemental indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of Securities of
such series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, for any purpose specified in
Section 1301, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, as the Trustee
shall determine, or, with the approval of the Company, at any
other place. Notice of every such meeting, setting forth the
time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company or
by the Holders of 33% in aggregate principal amount of all of
such series and Tranches, considered as one class, for any
purpose specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have given the notice
of such meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Company or the Holders of
Securities of such series and Tranches in the amount above
specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or in
such other place as shall be determined or approved by the
Company, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection
(a) of this Section.
(c) Any meeting of Holders of Securities of one or more,
or all, series, or any Tranche or Tranches thereof, shall be
valid without notice if the Holders of all Outstanding
Securities of such series or Tranches are present in person or
by proxy and if representatives of the Company and the Trustee
are present, or if notice is waived in writing before or after
the meeting by the Holders of all Outstanding Securities of
such series, or any Tranche or Tranches thereof, or by such of
them as are not present at the meeting in person or by proxy,
and by the Company and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a
Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only Persons
who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called
as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action
is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series
and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed
for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in Section 1302(a) not less than 10
days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series and
Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution pre-
sented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting
or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section
shall be binding on all the Holders of Securities of the series
and Tranches with respect to which such meeting shall have been
held, whether or not present or represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may
be in person or by proxy; and, to the extent permitted by law,
any such proxy shall remain in effect and be binding upon any
future Holder of the Securities with respect to which it was
given unless and until specifically revoked by the Holder or
future Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Inden-
ture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Securities in
regard to proof of the holding of such Securities and of the
appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section
104 and the appointment of any proxy shall be proved in the
manner specified in Section 104. Such regulations may provide
that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders as
provided in Section 1302(b), in which case the Company or the
Holders of Securities of the series and Tranches calling the
meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series and
Tranches represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1 principal amount of
Securities held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman
of the meeting shall have no right to vote, except as a Holder
of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at
which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series and
Tranches represented at the meeting, considered as one class;
and the meeting may be held as so adjourned without further
notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed
the signatures of the Holders or of their representatives by
proxy and the principal amounts and serial numbers of the
Outstanding Securities, of the series and Tranches with respect
to which the meeting shall have been called, held or represented
by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports of
all votes cast at the meeting. A record of the proceedings of
each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and
verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at
the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization,
direction, notice, consent, waiver or other action may be made,
given or taken by Holders by written instruments as provided in
Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal
of or premium, if any, or interest, if any, on any Securities, or
any part thereof, or for any claim based thereon or otherwise in
respect thereof, or of the indebtedness represented thereby, or
upon any obligation, covenant or agreement under this Indenture,
against any incorporator, shareholder, officer or director, as
such, past, present or future of the Company or of any
predecessor or successor corporation (either directly or through
the Company or a predecessor or successor corporation), whether
by virtue of any constitutional provision, statute or rule of
law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate
obligations, and that no personal liability whatsoever shall
attach to, or be incurred by, any incorporator, shareholder,
officer or director, past, present or future, of the Company or
of any predecessor or successor corporation, either directly or
indirectly through the Company or any predecessor or successor
corporation, because of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the
Securities or to be implied herefrom or therefrom, and that any
such personal liability is hereby expressly waived and released
as a condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the Securities.
-------------------------
This instrument may be executed in any number of counter-
parts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first
above written.
ENSERCH CORPORATION
By:
---------------------------------------
<PAGE>
THE BANK OF NEW YORK, Trustee
By:
---------------------------------------
<PAGE>
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the day of 1998, before me personally
----- --------
came , to me known, who, being by me duly
------------------
sworn, did depose and say that [he] is the of
--------------
ENSERCH Corporation, one of the corporations described in and
which executed the foregoing instrument; and that [he] signed
[his] name thereto by authority of the Board of Directors of said
corporation.
--------------------------------
---------------
Notary Public, State of Texas
My Commission Expires
----------
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , 1998, before me personally
------ --------
came , to me known, who, being by me duly
-----------------------
sworn, did depose and say that [he] is a [Vice President] of The
Bank of New York, one of the corporations described in and which
executed the foregoing instrument; and that [he] signed [his]
name thereto by authority of the Board of Directors of said
corporation.
-------------------------------------
-------------------
Notary Public, State of New York
No.
----------------
Qualified in County
----------
Commission Expires
------------------
Exhibit 4(d)
ENSERCH CORPORATION
OFFICER'S CERTIFICATE
_________________, the _________ of ENSERCH Corporation (the
"Company"), pursuant to the authority granted in the Board
Resolutions of the Company dated ____________, and Sections 201
and 301 of the Indenture defined herein, does hereby certify to
The Bank of New York (the "Trustee"), as Trustee under the
Indenture of the Company (For Unsecured Debt Securities) dated as
of _______________, 1998 (the "Indenture") that:
1. The securities of the __________ series to be issued
under the Indenture shall be designated "____%
Debentures due ______________" (the "Debentures of the
__________ Series"). All capitalized terms used in
this certificate which are not defined herein but are
defined in the Indenture shall have the meanings set
forth in the Indenture;
2. The Debentures of the __________ Series shall be
limited in aggregate principal amount to $____________
at any time Outstanding, except as contemplated in
Section 301(b) of the Indenture [and shall be issued in
the denominations of $________ each and in integral
multiples [thereof] [of $_________ in excess
thereof.]];
3. The Debentures of the __________ Series shall mature
and the principal shall be due and payable together
with all accrued and unpaid interest thereon on
______________;
4. The Debentures of the __________ Series shall bear
interest from _________, ____ at the rate of ____% per
annum payable semi-annually on __________ 1 and ______
1 of each year (each, an "Interest Payment Date")
commencing ________ 1, ____. The amount of interest
payable for any such period will be computed on the
basis of a 360-day year of twelve 30-day months.
Interest on the Debentures of the __________ Series
will accrue from _________, ____ but if interest has
been paid on such Debentures of the __________ Series,
then from the most recent Interest Payment Date to
which interest has been paid or duly provided for. In
the event that any Interest Payment Date is not a
Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment
in respect of such delay), with the same force and
effect as if made on such Interest Payment Date;
5. Each installment of interest on a Debenture of the
__________ Series shall be payable to the Person in
whose name such Debenture of the __________ Series is
registered at the close of business on the day
preceding [the ________ day of the calendar month next
preceding] [the first day of the calendar month in
which occurs] the corresponding Interest Payment Date
(the "Regular Record Date") for the Debentures of the
__________ Series[; provided, however, that if the
Debentures of the __________ Series are not held by a
securities depositary, the Regular Record Date shall be
the ________ day of the calendar month next preceding
[in which occurs] the corresponding Interest Payment
Date.] Any installment of interest on the Debentures
of the __________ Series not punctually paid or duly
provided for shall forthwith cease to be payable to the
Holders of such Debentures of the __________ Series on
such Regular Record Date, and may be paid to the
Persons in whose name the Debentures of the __________
Series are registered at the close of business on a
Special Record Date to be fixed by the Trustee for the
payment of such Defaulted Interest. Notice of such
Defaulted Interest and Special Record Date shall be
given to the Holders of the Debentures of the
__________ Series not less than 10 days prior to such
Special Record Date, or may be paid at any time in any
other lawful manner not inconsistent with the
requirements of any securities exchange on which the
Debentures of the __________ Series may be listed, and
upon such notice as may be required by such exchange,
all as more fully provided in the Indenture;
6. The principal and each installment of interest on the
Debentures of the __________ Series shall be payable
at, and registration and registration of transfers and
exchanges in respect of the Debentures of the
__________ Series may be effected at, the office or
agency of the Company in The City of New York; provided
that payment of interest may be made at the option of
the Company by check mailed to the address of the
persons entitled thereto as such addresses appear on
the Security Register. Notices and demands to or upon
the Company in respect of the Debentures of the
__________ Series may be served at the office or agency
of the Company in The City of New York. The Corporate
Trust Office of the Trustee will initially be the
agency of the Company for such payment, registration
and registration of transfers and exchanges and service
of notices and demands and the Company hereby appoints
the Trustee as its agent for all such purposes;
provided, however, that the Company reserves the right
to change, by one or more Officer's Certificates any
such office or agency and such agent. The Trustee will
be the Security Registrar and the Paying Agent for the
Debentures of the __________ Series;
7. [REDEMPTION PROVISIONS WILL BE INSERTED HERE]
8. The Debentures of the __________ Series will be
originally issued in global form payable to Cede & Co.
(as nominee of the Depositary Trust Company) and shall
bear the legend substantially in the form set forth in
Exhibit A hereto. The Debentures of the __________
Series will, unless and until the Debentures of the
__________ Series are exchanged in whole or in part for
certificated Debentures of the __________ Series
registered in the names of various beneficial holders
thereof (in accordance with the conditions set forth in
such legend), contain restrictions on transfer,
substantially as described in such legend;
9. No service charge shall be made for the registration of
transfer or exchange of the Debentures of the
__________ Series; provided, however, that the Company
may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with the exchange or transfer;
10. If the Company shall make any deposit of money and/or
Eligible Obligations with respect to any Debentures of
the __________ Series, or any portion of the principal
amount thereof, as contemplated by Section 701 of the
Indenture, the Company shall not deliver an Officer's
Certificate described in clause (z) in the first
paragraph of said Section 701 unless the Company shall
also deliver to the Trustee, together with such
Officer's Certificate, either:
(A) an instrument wherein the Company,
notwithstanding the satisfaction and discharge of its
indebtedness in respect of the Debentures of the
__________ Series, shall assume the obligation (which
shall be absolute and unconditional) to irrevocably
deposit with the Trustee or Paying Agent such
additional sums of money, if any, or additional
Eligible Obligations (meeting the requirements of
Section 701), if any, or any combination thereof, at
such time or times, as shall be necessary, together
with the money and/or Eligible Obligations theretofore
so deposited, to pay when due the principal of and
premium, if any, and interest due and to become due on
such Debentures of the __________ Series or portions
thereof, all in accordance with and subject to the
provisions of said Section 701; provided, however, that
such instrument may state that the obligation of the
Company to make additional deposits as aforesaid shall
be subject to the delivery to the Company by the
Trustee of a notice asserting the deficiency
accompanied by an opinion of an independent public
accountant of nationally recognized standing, selected
by the Trustee, showing the calculation thereof; or
(B) an Opinion of Counsel to the effect that, as
a result of a change in law occurring after the date of
this certificate, the Holders of such Debentures of the
__________ Series, or portions of the principal amount
thereof, will not recognize income, gain or loss for
United States federal income tax purposes as a result
of the satisfaction and discharge of the Company's
indebtedness in respect thereof and will be subject to
United States federal income tax on the same amounts,
at the same times and in the same manner as if such
satisfaction and discharge had not been effected.
11. The Debentures of the __________ Series shall have such
other terms and provisions as are provided in the form
set forth in Exhibit A hereto, and shall be issued in
substantially such form;
12. The undersigned has read all of the covenants and
conditions contained in the Indenture relating to the
issuance of the Debentures of the __________ Series and
the definitions in the Indenture relating thereto and
in respect of which this certificate is made;
13. The statements contained in this certificate are based
upon the familiarity of the undersigned with the
Indenture, the documents accompanying this certificate,
and upon discussions by the undersigned with officers
and employees of the Company familiar with the matters
set forth herein;
14. In the opinion of the undersigned, he has made such
examination or investigation as is necessary to enable
him to express an informed opinion whether or not such
covenants and conditions have been complied with; and
15. In the opinion of the undersigned, such conditions and
covenants and conditions precedent, if any (including
any covenants compliance with which constitutes a
condition precedent) to the authentication and delivery
of the Debentures of the __________ Series requested in
the accompanying Company Order have been complied with.
<PAGE>
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this ____ day of _______, ____.
____________________________________
<PAGE>
NO._______________
Cusip No.__________
EXHIBIT A
[FORM OF FACE OF DEBENTURE]
[(SEE LEGEND AT THE END OF THIS SECURITY FOR
RESTRICTIONS ON TRANSFERABILITY AND CHANGE OF FORM)]
ENSERCH CORPORATION
____% DEBENTURES DUE _______________
ENSERCH CORPORATION, a corporation duly organized and
existing under the laws of the State of Texas (herein referred to
as the "Company", which term includes any successor Person under
the Indenture), for value received, hereby promises to pay to
[Cede & Co.] or registered assigns, the principal sum of
_________________________________________________________________
___________ Dollars
on ______________, and to pay interest on said principal sum,
semi-annually on ________ 1 and ______ 1 of each year, commencing
________ 1, ____, at the rate of ____% per annum until the
principal hereof is paid or made available for payment. The
amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months.
Interest on the Securities of this series will accrue from
_________, ____, to the first Interest Payment Date, and
thereafter will accrue from the last Interest Payment Date to
which interest has been paid or duly provided for. In the event
that any Interest Payment Date is not a Business Day, then
payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of such delay) with the same force
and effect as if made on the Interest Payment Date. The interest
so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the day
preceding [the _______ day of the calendar month next preceding]
[the first day of the calendar month in which occurs] such
Interest Payment Date]; provided, however, that if the Securities
of this series are not held by a securities depositary, the
Regular Record Date shall be the 15th day of the calendar month
next preceding [in which occurs] such Interest Payment Date. Any
such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in The City of New York,
the State of New York in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at
the option of the Company, interest on this Security may be paid
by check mailed to the address of the person entitled thereto, as
such address shall appear on the Security Register.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
ENSERCH CORPORATION
By:_______________________________
ATTEST:
____________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:_________________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF DEBENTURE]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of ________, 1998 (herein, together with any amendments
thereto, called the "Indenture", which term shall have the
meaning assigned to it in such instrument), between the Company
and The Bank of New York, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture,
including the Board Resolutions and Officer's Certificate filed
with the Trustee on _________, ____ creating the series
designated on the face hereof, for a statement of the respective
rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and
of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal
amount to $___________.
[REDEMPTION PROVISIONS WILL BE INSERTED HERE]
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture, including the
Officer's Certificate described above.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected.
The Indenture contains provisions permitting the Holders of a
majority in aggregate principal amount of the Securities of all
series then Outstanding to waive compliance by the Company with
certain restrictive provisions of the Indenture. The Indenture
also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series
at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive certain past defaults under
the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof
or in exchange herefor or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of a
majority in aggregate principal amount of the Securities of all
series at the time Outstanding in respect of which an Event of
Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 each
[and any integral multiple] [of $________ in excess] thereof. As
provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for
a like aggregate principal amount of Securities of this series
and of like tenor and of authorized denominations, as requested
by the Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
<PAGE>
[LEGEND
Unless and until this Security is exchanged in whole or in
part for certificated Securities registered in the names of the
various beneficial holders hereof as then certified to the
Corporate Trustee by The Depository Trust Company (55 Water
Street, New York, New York) or its successor (the "Depositary"),
this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of Cede & Co.,
or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made
payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This Security may be exchanged for certificated Securities
registered in the names of the various beneficial owners hereof
if (a) the Depositary is at any time unwilling or unable to
continue as depositary and a successor depositary is not
appointed by the Company within 90 days, or (b) the Company
elects to issue certificated Securities to beneficial owners.
Any such exchange shall be made upon receipt by the Trustee of a
Company Order therefor and certificated Securities of this series
shall be registered in such names and in such denominations as
shall be certified to the Company and the Trustee by the
Depositary.]
Exhibit 4(e)
TRUST AGREEMENT
OF ENSERCH CAPITAL I
This TRUST AGREEMENT of ENSERCH Capital I (the
"Trust"), dated as of December 17, 1997, among (i) ENSERCH
Corporation, a Texas corporation (the "Depositor"), (ii) The Bank
of New York, a New York banking corporation (the "Property
Trustee"), not in its individual capacity but solely as trustee
of the Trust, (iii) The Bank of New York (Delaware), a Delaware
banking corporation (the "Delaware Trustee"), not in its
individual capacity but solely as trustee of the Trust, and
(iv) Michael Perkins, an individual employed by the Depositor,
not in his individual capacity but solely as trustee of the Trust
(the "Administrative Trustee")(the Administrative Trustee,
together with any administrative trustees appointed by the
Depositor after the date hereof, the "Administrative
Trustees")(each of such trustees in (ii), (iii) and (iv) a
"Trustee" and collectively, the "Trustees"). The Depositor and
the Trustees hereby agree as follows:
1. The trust created hereby shall be known as
"ENSERCH Capital I", 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 sue and be sued.
2. The Depositor hereby assigns, transfers, conveys
and sets over to the Trustees the sum of $10. The Trustees
hereby acknowledge receipt of such amount in trust from the
Depositor, which 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 constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. S.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 Secretary of State of the
State of Delaware in accordance with the provisions of the Business
Trust Act.
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 to be included as an exhibit
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 Trust Securities and
Common Trust 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 each of the Administrative Trustees, and the
Depositor, acting singly or together, (and, in the case of (iv)
below, Robert J. Reger, Jr., as authorized representative 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) a Registration Statement on Form S-3 (the "1933
Act Registration Statement") (including any pre-effective or
post-effective amendments thereto), relating to the registration
under the Securities Act of 1933, as amended, of the Preferred
Trust Securities of the Trust and certain other securities and
(b) a Registration Statement on Form 8-A (the "1934 Act Registra-
tion Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred
Trust Securities of the Trust under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934, as amended; (ii) to prepare and
file with The New York Stock Exchange, Inc. (the "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 Trust Securities to be listed on the Exchange, (iii) to
prepare and file and execute on behalf of the Trust such applica-
tions, 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
Trust Securities under the securities or blue sky laws of such
jurisdictions as the Depositor or the Administrative Trustee, on
behalf of the Trust, may deem necessary or desirable and (iv) to
execute and deliver, on behalf of the Trust, an underwriting
agreement in respect of the sale of the Preferred Trust
Securities in such form as the Depositor shall approve. In the
event that any filing referred to above is required by the rules
and regulations of the Commission, the Exchange or state
securities or blue sky laws, to be executed on behalf of the
Trust by one or more of the Trustees, each of the Trustees, in
its or his capacity as Trustee of the Trust, is hereby authorized
and, to the extent so required, 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 Property Trustee and the
Delaware Trustee, in their capacities as Trustees 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 Exchange or
state securities or blue sky laws. In connection with the
filings referred to above, the Depositor and each Trustee, solely
in its or his capacity as trustee of the Trust, hereby
constitutes and appoints Robert A. Wooldridge, Peter B. Tinkham and
Robert J. Reger, Jr., and each of them, as its or his 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 filings and
amendments (including post-effective amendments) to any of such
filings (including 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, the Exchange and securities or blue sky
administrators, 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 respective 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 three
(3) 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 to the extent required by the
Business Trust Act, one Trustee shall be either 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 and otherwise meets the requirements of
applicable Delaware law. Subject to the foregoing, the Depositor
is entitled to appoint or remove without cause any Trustee at any
time. Any one or more of the Trustees may resign upon thirty
days prior written notice to Depositor.
7. The Depositor shall have the right to dissolve the
Trust at any time prior to the issuance of any Preferred Trust
Security. Upon dissolution of the Trust pursuant to this Section
7, each of the Administrative Trustees, acting singly, is hereby
authorized to prepare, execute and file a Certificate of
Cancellation in respect of the Trust with the Secretary of State
of the State of Delaware.
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).
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written.
ENSERCH CORPORATION,
as Depositor
By: /s/ Robert S. Shapard
---------------------------
Name: Robert S.Shapard
Title: Treasurer
THE BANK OF NEW YORK, not in
its individual capacity but
solely as Trustee
By: /s/Mary Jane Morrissey
---------------------------
Name: Mary Jane Morrissey
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity
but solely as Trustee
By: /s/ Mary Jane Morrissey
---------------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
Michael Perkins, not in his
individual capacity but solely
as Trustee
By: /s/ Michael Perkins
---------------------------
Exhibit 4(f)
==============================================================
AMENDED AND RESTATED
TRUST AGREEMENT
between
ENSERCH CORPORATION, as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
,
,
,
and
, as Trustees
Dated as of __________, _________
ENSERCH CAPITAL I
============================================================
<PAGE>
ENSERCH CAPITAL
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.
<PAGE>
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 Trust
Securities . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.05. Subscription and Purchase of Debentures;
Issuance of the
Common Trust Securities . . . . . . . . . . . . . . 12
Section 2.06. Declaration of Trust; Appointment of
Additional
Administrative Trustees . . . . . . . . . . . . . . 12
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 . . . . . . . . . . . . . . 17
Section 4.02. Redemption . . . . . . . . . . . . . . . 18
Section 4.03. Subordination of Common Trust
Securities . . . . . . . . . . . . . . . . . . . . . . . 20
Section 4.04. Payment Procedures . . . . . . . . . . . 21
Section 4.05. Tax Returns and Reports . . . . . . . . . 21
Section 4.06. Payments under Indenture . . . . . . . . 21
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership . . . . . . . . . . . . 21
Section 5.02. The Trust Securities Certificates . . . . 22
Section 5.03. Execution and Delivery of Trust Securities
Certificates . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.04. Registration of Transfer and Exchange of
Preferred Trust
Securities Certificates . . . . . . . . . . . . . . 22
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust
Securities
Certificates . . . . . . . . . . . . . . . . . . . 23
Section 5.06. Persons Deemed Securityholders . . . . . 24
Section 5.07. Access to List of Securityholders' Names and
Addresses . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.08. Maintenance of Office or Agency . . . . . 24
Section 5.09. Appointment of Paying Agent . . . . . . . 25
Section 5.10. Ownership of Common Trust Securities by
Depositor . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.11. Definitive Preferred Trust Securities
Certificates . . . . . . . . . . . . . . . . . . . . . . 26
Section 5.12. Book-Entry System . . . . . . . . . . . . 26
Section 5.13. Rights of Securityholders . . . . . . . . 27
Section 5.14. Cancellation by Transfer Agent and
Registrar . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.01. Limitations on Voting Rights . . . . . . 27
Section 6.02. Notice of Meetings . . . . . . . . . . . 29
Section 6.03. Meetings of Holders of Preferred Trust
Securities . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.04. Voting Rights . . . . . . . . . . . . . . 29
Section 6.05. Proxies, etc. . . . . . . . . . . . . . . 29
Section 6.06. Securityholder Action by Written Consent 30
Section 6.07. Record Date for Voting and Other Purposes 30
Section 6.08. Acts of Securityholders . . . . . . . . . 30
Section 6.09. Inspection of Records . . . . . . . . . . 31
ARTICLE VII.
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee . . . . . . . . . . . . 31
Section 7.02. Delaware Trustee . . . . . . . . . . . . 32
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities . . . 33
Section 8.02. Notice of Defaults . . . . . . . . . . . 34
Section 8.03. Certain Rights of Property Trustee . . . 34
Section 8.04. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.05. May Hold Securities . . . . . . . . . . . 37
Section 8.06. Compensation; Fees; Indemnity . . . . . . 38
Section 8.07. Certain Trustees Required; Eligibility . 38
Section 8.08. Conflicting Interests . . . . . . . . . . 39
Section 8.09. Co-Trustees and Separate Trustee . . . . 39
Section 8.10. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.11. Acceptance of Appointment by Successor . 42
Section 8.12. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . 43
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust . . . . . . . . . . . . . . . . . . . 43
Section 8.14. Reports by Property Trustee . . . . . . . 43
Section 8.15. Reports to the Property Trustee . . . . . 44
Section 8.16. Evidence of Compliance With Conditions
Precedent . . . . . . . . . . . . . . . . . . . . . . . 44
Section 8.17. Number of Trustees . . . . . . . . . . . 44
Section 8.18. Delegation of Power . . . . . . . . . . . 44
Section 8.19. Fiduciary Duty . . . . . . . . . . . . . 45
ARTICLE IX.
Termination and Liquidation
Section 9.01. Dissolution Upon Expiration Date . . . . 46
Section 9.02. Early Termination . . . . . . . . . . . . 46
Section 9.03. Termination . . . . . . . . . . . . . . . 46
Section 9.04. Liquidation . . . . . . . . . . . . . . . 47
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and Assumption of
Obligations . . . . . . . . . . . . . . . . . . . . . . 49
Section 10.02. Limitation of Rights of Securityholders 49
Section 10.03. Amendment . . . . . . . . . . . . . . . 49
Section 10.04. Separability . . . . . . . . . . . . . . 51
Section 10.05. Governing Law . . . . . . . . . . . . . 51
Section 10.06. Successors . . . . . . . . . . . . . . . 51
Section 10.07. Headings . . . . . . . . . . . . . . . . 51
Section 10.08. Notice and Demand . . . . . . . . . . . 51
Section 10.09. Agreement Not to Petition . . . . . . . 52
Section 10.10. Conflict with Trust Indenture Act . . . 52
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
_______________, _______, between (i) ENSERCH Corporation, 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)
___________________, ______________, _____________,
_______________ and __________________, each an individual, and
each of whose address is c/o Texas Utilities Services Inc., 1601
Bryan Street, Dallas, Texas 75201 (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 Michael Perkins, 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 December 17, 1997
(the "Original Trust Agreement"), and by the execution by the
Property Trustee, the Delaware Trustee and Michael Perkins, as
Administrative Trustee and filing with the Secretary of State of
the State of Delaware of the Certificate of Trust, dated December
18, 1997, a copy of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware
Trustee and Michael Perkins, 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 Trust Securities, as hereinafter defined, by the Trust to
the Depositor, (iii) the issuance of the Preferred Trust
Securities, as hereinafter defined, by the Trust and (iv) the
appointment of additional Administrative Trustees of the Trust;
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 for 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 and not in their individual capacities, or
such trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Adverse Tax Consequence" means any of the
circumstances described in clauses (i), (ii) and (iii) of the
definition of "Tax Event" herein.
"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 Exchange Act.
"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 Trust Securities Certificate" means a
certificate evidencing ownership of Common Trust Securities,
substantially in the form attached as Exhibit B.
"Common Trust Security" means an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $_____ and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions,
Debentures and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means the principal corporate
trust office of the Property Trustee located in New York, New
York which at the date of execution of this Trust Agreement is
located at 101 Barclay Street - 21W, New York, New York 10286.
"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 ENSERCH Corporation, 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, and its permitted
successors and assigns as such trustee.
"Debentures" means the $____________ aggregate
principal amount of the Debenture Issuer's _____% Junior
Subordinated Debentures, Series __, issued pursuant to the
Subordinated Indenture which will mature on ____________, ______.
"Definitive Preferred Trust Securities Certificates"
means Preferred Trust 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 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 ENSERCH Corporation in its
capacity as Holder of the Common Trust 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
Trust 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 Trust Securities, as amended from
time to time.
"Indemnified Person" means any Trustee, any Affiliate
of any Trustee, or any officer, director, shareholder, member,
partners, employee, representative or agent 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 Holders to which such
Debentures are distributed.
"Liquidation Amount" means the stated amount of
$_______ 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.
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"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
Trust Securities, means, as of the date of determination, all
Preferred Trust Securities theretofore delivered under this Trust
Agreement, except:
(i) Preferred Trust Securities theretofore canceled
by the Transfer Agent and Registrar or delivered to the
Transfer Agent and Registrar for cancellation;
(ii) Preferred Trust Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred Trust
Securities; provided that, if such Preferred Trust
Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Trust
Agreement; and
(iii) Preferred Trust Securities in exchange for or in
lieu of which other Preferred Trust 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 Trust
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred Trust
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 Trust 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 Trust
Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Trust 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 Trust Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner
of a Trust Securities Certificate as reflected in the records of
the Securities Depository or, if a Securities Depository
participant is not the beneficial owner, then as reflected in the
records of a Person maintaining an account with such Securities
Depository (directly or indirectly), in accordance with the rules
of such Securities Depository.
"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 Chase Manhattan Bank, or such other banking
institution as the Depositor shall select for the benefit of the
Securityholders in which all amounts paid in respect of the
Debentures will be held and from which the Paying Agent, pursuant
to Section 5.09, 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 Trust Securities Certificate" means a
certificate evidencing ownership of Preferred Trust Securities,
substantially in the form attached as Exhibit D.
"Preferred Trust Security" means a security
representing an undivided beneficial interest in the assets of
the Trust having a Liquidation Amount of $_____ and having rights
provided therefor in this Trust Agreement, including the right to
receive Distributions, Debentures and a Liquidation Distribution
as provided herein and, in certain circumstances, a preference
over the Common Trust Securities.
"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 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, __________________.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Responsible Officer," when used with respect to the
Property Trustee means an officer of the Property Trustee
assigned by the Property Trustee to administer its corporate
trust matters.
"Securities Depository" shall have the meaning
specified in Section 5.12. The Depository Trust Company will be
the initial Securities Depository.
"Securities Register" shall mean the Securities
Register as 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 a beneficial
owner of such security within the meaning of the Delaware
Business Trust Act.
"Subordinated Indenture" means the Indenture, dated as
of ______________, 1998, 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 or the Company of
an opinion of 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,
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 time or manner in which such
amendment, clarification or change is introduced or 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 Trust 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 Company on the
Debentures is not, or will not be, fully deductible by the
Company 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.
"Transfer Agent and Registrar" shall mean the transfer
agent and registrar for the Preferred Trust Securities appointed
by the Trust and shall be initially Texas Utilities Services Inc.
"Trust" means the Delaware business trust created by
the Original Trust Agreement and the Certificate of Trust and
continued hereby and identified on the cover page to this Trust
Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any
cash on deposit in, or owing to, the Payment Account and (iii)
all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the
Common Trust Securities Certificates or the Preferred Trust
Securities Certificates.
"Trust Security" means any one of the Common Trust
Securities or the Preferred Trust Securities.
"Underwriting Agreement" means the Underwriting
Agreement, dated as of _____________, ______, among the Trust,
the Depositor and the underwriters named therein.
ARTICLE II.
ESTABLISHMENT OF THE TRUST
SECTION 2.01. NAME. The Trust continued hereby shall
be known as "ENSERCH Capital I", 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 sue 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 White Clay Center, Route 273, Newark,
Delaware 19711, 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 ENSERCH Corporation, Energy Plaza,
1601 Bryan Street, Dallas, Texas 75201.
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 TRUST
SECURITIES. On _____________, _____ an authorized representative
of the Depositor and the Trust, both 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,
executed and delivered a Preferred Trust Securities Certificate,
registered in the name of the nominee of The Depositary Trust
Company, having an aggregate Liquidation Amount of
$_________________.
SECTION 2.05. SUBSCRIPTION AND PURCHASE OF DEBENTURES;
ISSUANCE OF THE COMMON TRUST 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 Debenture Issuer Debentures, registered
in the name of the Property Trustee and having an aggregate
principal amount equal to $___________ and, in satisfaction of
the purchase price for such Debentures, (x) one of the
Administrative Trustees, on behalf of the Trust, shall execute
and deliver to the Depositor Common Trust Securities
Certificates, registered in the name of the Depositor,
representing ______ Common Trust Securities having an aggregate
Liquidation Amount of $__________, and (y) the Property Trustee,
on behalf of the Trust, shall deliver to the Debenture Issuer the
sum of $___________ representing the proceeds from the sale of
the Preferred Trust Securities pursuant to the Underwriting
Agreement.
SECTION 2.06. DECLARATION OF TRUST; APPOINTMENT OF
ADDITIONAL ADMINISTRATIVE TRUSTEES. 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 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.
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,
acting singly or together, 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, and such
other agreements as may be necessary or desirable in
connection with the consummation of the Underwriting
Agreement;
(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 Trust
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 appointment of a Paying Agent and Transfer
Agent and Registrar in accordance with this Trust
Agreement;
(vii) registering transfers of the Trust Securities in
accordance with this Trust Agreement;
(viii) the establishment of a record date for any of
the purposes contemplated by Section 6.07 hereof;
(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 ministerial 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) to the extent 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 ministerial 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 Trustees set forth in Sections 2.07(a)(A) and
2.07(c) or the Depositor set forth in Section 2.07(c). The
Property Trustee shall have the power and authority to exercise
all of the rights, powers and privileges of a holder of
Debentures under the Subordinated Indenture and, if an Event of
Default occurs and is continuing, the Property Trustee may, for
the benefit of Holders of the Trust Securities, in its
discretion, proceed to protect and enforce its rights as holder
of the Debentures subject to the rights of the Holders pursuant
to the terms of this Trust Agreement.
(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 Trust
Securities, the Depositor and the Administrative Trustees, acting
singly or together, (and, in the case of (iii) and (v) below,
Robert J. Reger, Jr., as authorized representative of the Trust)
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 Trust 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 Trust 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 execute and deliver on behalf of the Trust
the Underwriting Agreement and such other agreements as
may be necessary or desirable in connection with the
consummation thereof;
(iv) to select the investment banker or bankers to
act as underwriters with respect to the offer and sale
by the Trust of Preferred Trust Securities ("Offer")
and negotiate the terms of an Underwriting Agreement
and pricing agreement providing for the Offer; and
(v) to take any other actions necessary or desirable
to carry out any of the foregoing activities.
(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 Debenture Issuer 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 (as amended or
restated from time to time, 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 Trust 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
Trustee 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.
The Property Trustee shall have no liability in any respect
whatsoever in regards to any moneys or other property deposited
in the Payment Account at an institution other than the Property
Trustee.
(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 the Closing Date, 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 semi-annually
in arrears on __________ and _________ of each year, commencing
on ________, ______. 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) 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 semi-annual period shall be computed on the
same basis as interest is calculated on the Debentures. If the
interest payment period for the Debentures is extended pursuant
to Section 311 of the Subordinated Indenture, then Distributions
on the Trust 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, to the
extent permitted by law, interest payable on unpaid interest at
the percentage rate per annum set forth above, compounded semi-
annually) 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 and at the maturity date ("Maturity Date") for
the Debentures (as defined in the Subordinated Indenture), 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 Redemption Date or Maturity Date, as
the case may be.
(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 Distributions 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
Redemption Date will become due and payable upon each
such Trust Security to be redeemed and that
Distributions 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 Redemption Date 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 Redemption Date
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 Trust 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
Redemption Date and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price plus
accumulated and unpaid Distributions to the Redemption Date to
the Holders thereof upon surrender of their Preferred Trust
Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the
Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption
shall have been given and funds deposited as required, then 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 Redemption Date
thereof, but without interest thereon, and such Trust 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 Redemption 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
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 to the Common Trust Securities and to the Preferred
Trust Securities in the proportion that the aggregate Liquidation
Amount of each is to the aggregate Liquidation Amount of all
outstanding Trust Securities. The particular Preferred Trust
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 Trust 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
redemption of portions (equal to $_____ or integral multiples
thereof) of the Liquidation Amount of Preferred Trust Securities
of a denomination larger than $_____. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of
the Preferred Trust Securities selected for redemption and, in
the case of any Preferred Trust 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 Trust Securities shall relate, in the case of any
Preferred Trust Securities redeemed or to be redeemed only in
part, to the portion of the Liquidation Amount of Preferred Trust
Securities which has been or is to be redeemed.
SECTION 4.03. SUBORDINATION OF COMMON TRUST
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 an 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 Trust Security, and no other payment on
account of the redemption, liquidation or other acquisition of
Common Trust 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
Trust 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 Trust 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 Trust 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 Trust 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 Trust
Securities have been cured, waived or otherwise eliminated.
Until all such Events of Default under this Trust Agreement with
respect to the Preferred Trust Securities have been so cured,
waived or otherwise eliminated, the Property Trustee shall act
solely on behalf of the Holders of the Preferred Trust Securities
and not the Holder of the Common Trust Securities, and only the
Holders of the Preferred Trust 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 Trust Securities shall be made by
check mailed to the address of the Person entitled thereto as
such address shall appear on the Securities Register or, if the
Preferred Trust Securities are held by a Securities Depository,
such Distributions shall be made to the Securities Depository,
which shall credit the relevant Persons' accounts at such
Securities Depository on the applicable Distribution Dates.
Payments in respect of the Common Trust Securities shall be made
in such manner as shall be mutually agreed between the
Administrative Trustees and the Holder of the Common Trust
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.
SECTION 4.06. PAYMENTS UNDER INDENTURE. Any amount
payable hereunder to any Holder of Preferred Trust Securities
shall be reduced by the amount of any corresponding payment such
Holder has directly received pursuant to Section 808 of the
Subordinated Indenture. Notwithstanding the provisions hereunder
to the contrary, Securityholders acknowledge that any Holder of
Preferred Trust Securities that receives payment under Section
808 of the Subordinated Indenture may receive amounts greater
than the amount such Holder may be entitled to receive pursuant
to the other provisions of this Trust Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.01. INITIAL OWNERSHIP. Upon the creation 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
$_____ Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of at least one
Administrative Trustee and, if executed on behalf of the Trust by
facsimile signature, the Preferred Trust Securities shall be
countersigned by the Transfer Agent and Registrar or its agent.
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 and, if
executed on behalf of the Trust by facsimile signature,
countersigned by the Transfer Agent and Registrar or its agent,
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, or any one of them, 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,
and in the case of Preferred Trust Securities executed by facsimile
signature, countersigned by the Transfer Agent and Registrar, or
its agent, and 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. The Depositor agrees
to indemnify, defend and hold The Bank of New York harmless against
any and all costs and liabilities incurred without negligence
arising out of or in connection with any such countersigning by
it.
SECTION 5.04. REGISTRATION OF TRANSFER AND EXCHANGE OF
TRUST SECURITIES CERTIFICATES. The Transfer Agent and 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 Transfer Agent and Registrar shall provide for the
registration of Preferred Trust Securities Certificates and the
Common Trust Securities Certificates (subject to Section 5.10 in
the case of the Common Trust Securities Certificates) and
registration of transfers and exchanges of Preferred Trust
Securities Certificates as herein provided. Texas Utilities
Services Inc. shall be the initial Transfer Agent and Registrar.
Upon surrender for registration of transfer of any
Preferred Trust Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause the Transfer Agent and
Registrar or its agent to countersign and deliver, in the name of
the designated transferee or transferees, one or more new
Preferred Trust Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount. At the
option of a Holder, Preferred Trust Securities Certificates may
be exchanged for other Preferred Trust Securities Certificates in
authorized denominations of the same class and of a like
aggregate Liquidation Amount upon surrender of the Preferred
Trust Securities Certificates to be exchanged at the office or
agency maintained pursuant to Section 5.08.
Every Preferred Trust 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 Transfer
Agent and Registrar duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Preferred Trust
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 Trust 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 Trust 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 Trust Securities so
selected for redemption, in whole or in part, except the
unredeemed portion of any such Preferred Trust Securities being
redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Trust Securities Certificates,
but the Transfer Agent and 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
Trust 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 Transfer Agent
and Registrar, or if the Transfer Agent and 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 Transfer Agent and Registrar and the
Administrative Trustees such security or indemnity as may be
required by them to save each of them and the Depositor harmless,
then in the absence of notice that such Trust Securities
Certificate shall have been acquired by a bona fide purchaser,
the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute by manual or facsimile signature and, if
execution on behalf of the Trust is by facsimile signature,
countersigned by a Transfer Agent and Registrar or its agent; and
the Administrative Trustees, or any one of them, and, if executed
on behalf of the Trust by facsimile signature, countersigned by
the Transfer Agent and Registrar or its agent 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 Transfer Agent and 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 Transfer Agent and
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 Trustees nor the
Transfer Agent and 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 or the
Property Trustee may reasonably require, of the names and
addresses of the Securityholders as of a recent 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 any 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
Depositor shall or shall cause the Transfer Agent and Registrar
to maintain in the Borough of Manhattan, The City of New York, an
office or offices or agency or agencies where Preferred Trust
Securities Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Depositor or the Transfer Agent and Registrar in respect of the
Trust Securities Certificates may be served. The Depositor
initially designates Midwest Clearing Corporation, 40 Broad
Street, New York, New York 10004 as its principal corporate trust
office for such purposes. The Depositor shall or shall cause the
Transfer Agent and Registrar to give prompt written notice to the
Depositor, the Property Trustee 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 or any one of them determines in its sole
discretion that the Paying Agent shall have failed to perform its
obligations under this Trust 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 of the
removal or resignation of Texas Utilities Services Inc. as 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, trust
company or an Affiliate of the Depositor). 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, and the Paying Agent shall be
bound by the requirements with respect to paying agents of
securities issued pursuant to the Trust Indenture Act. 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 TRUST SECURITIES BY
DEPOSITOR. On the Closing Date, the Depositor shall acquire, and
thereafter retain, beneficial and record ownership of the Common
Trust Securities. Except in connection with a consolidation,
merger or sale involving the Depositor that would be permitted
under Article Eleven of the Subordinated Indenture, any attempted
transfer of the Common Trust Securities shall be void. The
Administrative Trustees shall cause each Common Trust Securities
Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE
TRUST AGREEMENT". Common Trust Securities Certificates
representing the Common Trust Securities shall be issued to the
Depositor in the form of a typewritten or definitive Common Trust
Securities Certificate.
SECTION 5.11. DEFINITIVE PREFERRED TRUST SECURITIES
CERTIFICATES. Upon initial issuance of the Preferred Trust
Securities, the Definitive Preferred Trust 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 on behalf of the Trust by manual or facsimile signature,
and, if executed by facsimile on behalf of the Trust,
countersigned by the Transfer Agent and Registrar or its agent,
the Definitive Preferred Trust Securities Certificates initially
in accordance with the instructions of the Depositor. Neither
the Transfer Agent and 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 Trust 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 Trust Securities,
in which case the Owners of such Preferred Trust Securities will
not receive physical delivery of certificates for Preferred Trust
Securities. Except as provided herein, all transfers of
beneficial ownership interests in such Preferred Trust Securities
will be made by book-entry only, and no investor or other party
purchasing, selling or otherwise transferring beneficial
ownership of the Preferred Trust Securities will receive, hold or
deliver any certificate for Preferred Trust Securities. The
Depositor, the Trustees and the Paying Agent will recognize the
Securities Depository or its nominee as the Holder of Preferred
Trust 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
Trust 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 Trust Securities with respect to required notices and
other provisions of the letter of representations or agreement
executed with respect to such Preferred Trust Securities.
Whenever the beneficial ownership of any Preferred
Trust Securities is determined through the books of a Securities
Depository, the requirements in this Trust Agreement of holding,
delivering or transferring such Preferred Trust Securities shall
be deemed modified with respect to such Preferred Trust
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 Trust Securities shall, while such
Preferred Trust 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 Trust Securities shall have no
preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor
will be fully paid and nonassessable undivided beneficial
interests in the assets of the Trust.
SECTION 5.14. CANCELLATION BY TRANSFER AGENT AND
REGISTRAR. All Trust Securities Certificates surrendered for
payment, redemption, registration of transfer or exchange shall,
if surrendered to any Person other than the Transfer Agent and
Registrar, be delivered to the Transfer Agent and Registrar and,
if not theretofore cancelled, shall be promptly cancelled by the
Transfer Agent and Registrar. No Trust Securities Certificates
shall be issued in lieu of or in exchange for any Trust
Securities Certificates cancelled as provided in this Section,
except as expressly permitted by this Trust Agreement. All
cancelled Trust Securities Certificates held by the Transfer
Agent and Registrar shall be disposed of in accordance with
customary practices.
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 Trust
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. If the Property Trustee fails to enforce its rights
under the Debentures or this Trust Agreement, a Holder of
Preferred Trust Securities may institute a legal proceeding
directly against the Depositor to enforce the Property Trustee's
rights under the Debentures or this Trust Agreement, to the
fullest extent permitted by law, without first instituting any
legal proceeding against the Property Trustee or any other
person. Notwithstanding the foregoing, a Holder of Preferred
Trust Securities may directly institute a proceeding for
enforcement of payment to such Holder of principal of or interest
on the Debentures having a principal amount equal to the
aggregate liquidation preference amount of the Preferred
Securities of such Holder on or after the due dates specified in
the Debentures.
(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
Outstanding Preferred Trust 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 Trust Securities.
The Trustees shall not revoke any action previously authorized or
approved by a vote of the Preferred Trust Securities, except
pursuant to a subsequent vote of the Preferred Trust Securities.
The Property Trustee shall notify all Holders of the Preferred
Trust 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
Trust Securities, prior to taking any of the foregoing actions,
the Property Trustee shall, at the expense of the Depositor,
obtain an Opinion of Counsel experienced in such matters to the
effect that 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 Trustees otherwise propose to effect, (i)
any action that would materially adversely affect the powers,
preferences or special rights of the Preferred Trust 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 Trust Securities as a class
will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the
approval of the Holders of at least 66 2/3% in aggregate
Liquidation Amount of the Outstanding Preferred Trust Securities.
SECTION 6.02. NOTICE OF MEETINGS. Notice of all
meetings of the Holders of Preferred Trust 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 Trust 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 TRUST
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
Trust Securities (based upon their aggregate Liquidation Amount)
and may, at any time in their discretion, call a meeting of
Holders of Preferred Trust Securities to vote on any matters as
to which the Holders of Preferred Trust Securities are entitled
to vote.
Holders of 50% of the then Outstanding Preferred Trust
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 Trust Securities present, in
person or by proxy, holding more than the lesser of (x) 66 2/3%
of the then Outstanding Preferred Trust Securities (based upon
their aggregate Liquidation Amount) held by the Holders of then
Outstanding Preferred Trust Securities present, either in person
or by proxy, at such meeting and (y) 50% of the Outstanding
Preferred Trust 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 $_____ 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 Trustees 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
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 Trust 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 or among the
Securityholders and the Administrative 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) the execution, delivery and performance by the
Property Trustee of this Trust Agreement does not require the
consent or approval of, the giving of notice to, or the
registration with any Federal or New York banking authority.
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) the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement does not require the
consent or approval of, the giving of notice to, or the
registration with any Federal or Delaware banking authority.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees
shall be restricted to those set forth in the express provisions
of this Trust Agreement and, in the case of the Property Trustee,
as provided in the Trust Indenture Act, and no implied covenants
or obligations shall be read into this Trust Agreement against
any of the Trustees. For purposes of Sections 315(a) and 315(c)
of the Trust Indenture act, the term "default" is hereby defined
as an Event of Default which has occurred and is continuing.
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,
exculpations and limitations on liability afforded to the
Property Trustee under this Trust Agreement, the Trust Indenture
Act, the Delaware Business Trust Act and, to the extent
applicable, Rule 3a-7 under the Investment Company Act of 1940,
as amended, 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 8.01.
(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, exculpations and limitations on liability
afforded to the Property Trustee under this Trust
Agreement, the Trust Indenture Act, the Delaware
Business Trust Act and, to the extent applicable, Rule
3a-7 under the Investment Company Act of 1940, as
amended, or any successor rule 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. (a) Within ninety
(90) days after the occurrence of any default known to the
Property Trustee, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.08, notice of
such default 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.
(a)
(b) Within five Business Days after receipt of
notice of the Debenture Issuer's exercise of its right to defer
the payment of interest on the Debentures pursuant to the
Subordinated Indenture, an Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.08, notice
of such exercise to the Securityholders and the Property Trustee.
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
Trust 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 Securityholder pursuant to this Trust
Agreement, unless such Securityholder 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 complying
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,
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;
(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 (A) a
Responsible Officer of the Property Trustee shall have
actual knowledge of the default or Event of Default or
(B) 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;
(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 form) (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 (A) may request instructions from
the Holders of the Trust Securities, which instructions
may only be given by the Holders of the same
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, (B) may refrain from enforcing such
remedy or right or taking such other action until such
instructions are received, and (C) 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 title to, or value or condition of, the property of the Trust
or any part thereof, nor as to the validity or sufficiency of
this Trust Agreement, the Debentures or the Trust Securities.
The Trustees shall not be accountable for the use or application
by the Trust of the proceeds of the Trust Securities.
SECTION 8.05. MAY HOLD SECURITIES. Any Trustee or any
agent of any Trustee or the Trust, in its individual or any other
capacity, may become the owner or pledgee of Trust Securities
and, except as provided in the definition of the term
"Outstanding" in Article I, may otherwise deal with the Trust
with the same rights it would have if it were not a Trustee or
such agent.
SECTION 8.06. COMPENSATION; FEES; INDEMNITY.
The Depositor agrees:
(i) 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);
(ii) 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
(iii) 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 the
trust or trusts under 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.
In addition to the rights provided to each Trustee
pursuant to the provisions of the immediately preceding paragraph
of this Section 8.06, when a Trustee incurs expenses or renders
services in connection with an Event of Default resulting from a
Bankruptcy Event with respect to the Trust, the expenses
(including the reasonable charges and expenses of its counsel)
and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State
bankruptcy, insolvency or other similar law.
The provisions of this Section 8.06 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 Trust
Agreement. 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 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 resigning 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.
Unless a Debenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at any
time by Act of the Common Trust Securityholder. If a Debenture
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 Outstanding Preferred Trust Securities, 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 Debenture Event of Default shall have occurred and
be continuing, the Common Trust Securityholder, by Act of the
Common Trust Securityholder delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, 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 a Debenture Event of
Default shall have occurred and be continuing, the Preferred
Trust Securityholders, by Act of the Preferred Trust
Securityholders of a majority in aggregate Liquidation Amount of
the Outstanding Preferred Trust Securities delivered to the
retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees, and the Relevant Trustee shall
comply with the applicable requirements of Section 8.11. If no
successor Relevant Trustee shall have been so appointed by the
Common Trust Securityholders or the Preferred Trust
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.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee and each
appointment of a successor Trustee 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 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
requirements 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).
No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any successor Property
Trustee or Delaware Trustee.
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Trustee
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 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; but, on request of the
Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor
Trustee all Trust Property, all proceeds thereof and money held
by such retiring Relevant Trustee hereunder with respect to the
Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee,
the retiring Relevant Trustee shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor
Relevant Trustee shall be qualified and eligible under this
Article VIII.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS. Any Person into which the Property
Trustee or the Delaware Trustee or any Administrative Trustee 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, the giving of any notice 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) 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. Such
of those reports as are required to be transmitted by the
Property Trustee pursuant to Section 313(a) of the Trust
Indenture Act shall be so transmitted within 60 days after
_____________ of each year, commencing ________, _____.
(b) 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. The
Depositor will notify the Property Trustee when any Trust
Securities are listed on any stock exchange.
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, 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 Sections
2.07(a) and 2.07(c), 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 and
subject to the provisions of the Trust Indenture Act:
(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) Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act, 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 reasonably
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. DISSOLUTION UPON EXPIRATION DATE. The
Trust shall automatically dissolve on December 31, 2050 (the
"Expiration Date") and the Trustees shall take such action as is
required by 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 in respect
of, or the dissolution or liquidation of, the
Depositor/Debenture Issuer;
(ii) the redemption of all of the Preferred Trust
Securities;
(iii) an order for judicial dissolution of the Trust
having been entered by a court of competent
jurisdiction;
(iv) the election by the Depositor to dissolve the
Trust and, after satisfaction of liabilities to
creditors of the Trust, distribute the Debentures to
the Holders of Preferred Trust Securities in
liquidation of the Trust;
the Trust shall dissolve 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) Upon the Expiration
Date or if an Early Termination Event specified in clause (i),
(iii) or (iv) of Section 9.02 occurs, after satisfaction of
creditors of the Trust, if any, 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 Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be
outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a
Like Amount of 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 Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Sections 9.02(ii), 9.04(d) or 9.04(e)
apply, in order to effect the liquidation of the Trust hereunder,
and any resulting 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), 9.04(d) or 9.04(e)
apply, after any Liquidation Date, (i) the Trust Securities will
no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Debentures will, after satisfaction
of liabilities to creditors of the Trust, if any, as provided by
applicable law, be issued to Holders of Trust Securities
Certificates, upon surrender of such Trust Securities
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 Securities Certificates until
such Trust Securities Certificates are so surrendered (and until
such Trust Securities 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,
after satisfaction of liabilities to creditors of the Trust, if
any, as provided by applicable law, Debentures upon surrender of
Trust Securities Certificates.
(d) If at any time, a Tax Event shall occur and be
continuing, and either (i) in the opinion of counsel to the
Depositor experienced in such matters, there would in all cases,
after effecting the dissolution of the Trust, after satisfaction
of liabilities to creditors of the Trust, if any, as provided by
applicable law, and the distribution of the Debentures to the
holders of the Preferred Trust Securities in exchange therefor,
be more than an insubstantial risk that an Adverse Tax
Consequence would continue to exist or (ii) the Debentures are
not held by the Trust, then the Depositor shall have the right to
redeem the Debentures, in whole but not in part, at any time
within 90 days following the occurrence of the Tax Event at the
Redemption Price. Whether or not a Tax Event has occurred, the
Depositor has the right, at any time, to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust, if
any, as provided by applicable law, cause the Debentures to be
distributed to the holders of the Preferred Trust Securities and
Common Trust Securities in liquidation of the Trust.
(e) In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order for
dissolution entered by a court of competent jurisdiction or
otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical,
the Trust Property shall be liquidated, and the Trust shall be
wound-up or terminated, by the Property Trustee in such manner as
the Property Trustee determines. In such event, on the date of
the 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 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 Holder of Common Trust Securities will
be entitled to receive Liquidation Distributions upon any such
winding-up or termination pro rata (determined as aforesaid) with
Holders of Preferred Trust Securities, except that, if a
Debenture Event of Default has occurred and is continuing or if a
Debenture Event of Default has not occurred solely by reason of a
requirement that time lapse or notice be given, the Preferred
Trust Securities shall have a priority over the Common Trust
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 the amounts due such Holders pursuant to the terms
of the Preferred Trust Securities. 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, incapacity, bankruptcy, dissolution
or termination 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 Securityholders), (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement 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 such action shall not adversely
affect in any material respect the interests of any
Securityholder and, in the case of clause (i), any such
amendments of this Trust Agreement shall become effective when
notice thereof is given to the Securityholders.
(b) Except as provided in Sections 6.01(c) and
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 outstanding
Trust Securities and (ii) receipt by the Trustees of an Opinion
of Counsel to the effect that such amendment or the exercise of
any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust
for federal income tax purposes or the Trust's exemption from
status as 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) adversely 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 amendment to this Trust Agreement may be made if,
as a result of such amendment, the Trust would not be classified
as a "grantor trust" but an association taxable as a corporation
for United States federal income tax purposes or would 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 or, in the case of the Trustees, which affects any of
their respective rights, duties or immunities hereunder.
(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 and the Delaware Trustee may
join in the execution of any amendment to the Trust Agreement and
are entitled to rely upon an Opinion of Counsel as conclusive
evidence that any amendment to this Trust Agreement entered into
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
accept the additional trusts created thereby and, if so
requested, for the Property Trustee or the Delaware Trustee 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 Trust
Securityholder, to such Preferred Trust Securityholder as such
Securityholder's name and address may appear on the Securities
Register and (ii) in the case of the Common Trust Securityholder
or the Depositor, to ENSERCH Corporation, Energy Plaza, 1601
Bryan Street, Dallas, Texas 75201, Attention: _________,
facsimile no. 214-________, with a copy to the Secretary,
facsimile no. 214-________. 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, 101 Barclay Street,
Floor 21 West, New York, NY 10286, Attention: Corporate Trust
Department, with a copy to: The Bank of New York (Delaware),
White Clay Center, Route 273, Newark, Delaware 19711, 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
ENSERCH Capital I". 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 estopped 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 or deemed 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 Trust
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, 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.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amended and
Restated Trust Agreement to be duly executed, all as of the day
and year first above written.
ENSERCH CORPORATION
By:_____________________________
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:_____________________________
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:_____________________________
Title:
_______________________________
solely in his capacity as
Administrative Trustee
_______________________________
solely in his capacity as
Administrative Trustee
_______________________________
solely in his capacity as
Administrative Trustee
_______________________________
solely in his capacity as
Administrative Trustee
_______________________________
solely in his capacity as
Administrative Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
ENSERCH CAPITAL I
THIS CERTIFICATE OF TRUST of ENSERCH Capital I (the
"Trust"), dated as of December 18, 1997, 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. S. 3801,
-------
et seq.).
-------
1. Name. The name of the business trust being created
hereby is ENSERCH Capital I.
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), White
Clay Center, Route 273, Newark, New Castle County, Delaware
19711.
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), Michael Perkins,
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By:/s/ Mary Jane Morrissey By:/s/ Michael Perkins
_____________________ ____________________________
Name:Mary Jane Morrissey
Title: Authorized Signatory
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:/s/ Mary Jane Morrissey
_____________________
Name: Mary Jane Morrissey
Title: Vice President
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS
PROVIDED IN THE TRUST AGREEMENT
Number of Common
Certificate Number Trust Securities
C-[ ]
Certificate Evidencing Common Trust Securities
of
ENSERCH Capital I
Common Trust Securities
(liquidation amount $_____ per Common Trust Security)
ENSERCH Capital I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby
certifies that ENSERCH Corporation (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 Trust Securities (liquidation
amount $_____ per Common Trust Security) (the "Common Trust
Securities"). Except as permitted by Section 5.10 of the Trust
Agreement (as defined below), the Common Trust 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 Trust Securities are
set forth in, and this certificate and the Common Trust
Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended
and Restated Trust Agreement of the Trust dated as of __________,
______, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Common
Trust 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_.
ENSERCH Capital I
By:
______________________________
not in his (her) individual
capacity, but solely as
Administrative Trustee
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of __________, _____ between ENSERCH
Corporation, a Texas corporation ("ENSERCH"), and ENSERCH Capital
I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Trust
Securities (the "Common Trust Securities") to and receive
Debentures from ENSERCH and to issue its _____ Cumulative
Preferred Trust Securities (the "Preferred Trust Securities")
with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of
the Trust dated as of __________, ______ as the same may be
amended from time to time (the "Trust Agreement");
WHEREAS, ENSERCH is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance of
the Preferred Trust Securities by each holder thereof, which
acceptance ENSERCH hereby agrees shall benefit ENSERCH and which
acceptance ENSERCH acknowledges will be made in reliance upon the
execution and delivery of this Agreement, ENSERCH, including in
its capacity as holder of the Common Trust Securities, and the
Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by ENSERCH.
_______________________
Subject to the terms and conditions hereof, ENSERCH hereby
irrevocably and unconditionally assumes the full payment, when
and as due, of any and all Obligations (as hereinafter defined)
to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries"). As used
herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than obligations of the Trust to
pay to holders of any Preferred Trust Securities the amounts due
such holders pursuant to the terms of the Preferred Trust
Securities. This Agreement 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 1.02. Term of Agreement.
________________
This Agreement shall terminate and be of no further force and
effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at
any time any holder of Preferred Trust Securities or any
Beneficiary must restore payment of any sums paid under the
Preferred Trust Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by ENSERCH and The Bank
of New York, as guarantee trustee, or under this Agreement for
any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice.
________________
ENSERCH hereby waives notice of acceptance of this Agreement
and of any Obligation to which it applies or may apply, and
ENSERCH hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption
and all other notices and demands.
Section 1.04. No Impairment.
_____________
The obligations, covenants, agreements and duties of ENSERCH
under this Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of
the assets of the Trust.
Neither the Trust nor any Beneficiary shall have any obligation
to give notice to, or obtain the consent of, ENSERCH with respect
to the happening of any of the foregoing.
Section 1.05. Enforcement.
___________
A Beneficiary may enforce this Agreement directly against
ENSERCH and ENSERCH waives any right or remedy to require that
any action be brought against the Trust or any other person or
entity before proceeding against ENSERCH.
ARTICLE II
Section 2.01. Binding Effect.
______________
All of the obligations, covenants and agreements contained in
this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of ENSERCH and shall inure to the
benefit of the Beneficiaries and their successors and assigns.
Section 2.02. Amendment.
__________
So long as there remains any Beneficiary or any Preferred Trust
Securities of any series shall be outstanding, this Agreement
shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Trust Securities.
Section 2.03. Notices.
________
Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or
certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of an answer-back, if
sent by telex), to wit:
ENSERCH Capital I
c/o ______________________, Administrative Trustee
1601 Bryan Street
Dallas, Texas 75201
Facsimile No.: 214-________
ENSERCH Corporation
1601 Bryan Street
Dallas, Texas 75201
Facsimile No.: 214-________
Attention: __________
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first
above
written.
ENSERCH CORPORATION
By:______________________________
Name:
Title:
ENSERCH CAPITAL I
By:_______________________________
not in his individual capacity,
but solely as Administrative
Trustee
<PAGE>
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Trust Securities
P- CUSIP NO.
Certificate Evidencing Preferred Trust Securities
of
ENSERCH Capital I
% Cumulative Preferred Trust Securities
(liquidation amount $1,000 per Preferred Trust Security)
ENSERCH Capital I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby
certifies that ____________ (the "Holder") is the registered
owner of _____ (_____) Preferred Trust Securities of the Trust
representing an undivided beneficial interest in the assets of
the Trust and designated the ENSERCH Capital I _____% Cumulative
Preferred Trust Securities (liquidation amount $_____ per
Preferred Trust Security) (the "Preferred Trust Securities").
The Preferred Trust Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper
form for transfer as provided in Section 5.04 or 5.11 of the
Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Preferred Trust Securities are set forth in,
and this certificate and the Preferred Trust Securities
represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of __________, ______, as
the same may be amended from time to time (the "Trust
Agreement"). The holder of this certificate is entitled to the
benefits of the Guarantee Agreement of ENSERCH Corporation, a
Texas corporation, and The Bank of New York, as guarantee
trustee, dated as of __________, _____ (the "Guarantee") to the
extent provided therein. The Trust will furnish a copy of the
Trust Agreement and the Guarantee to the holder of this
certificate without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees
of the Trust has executed this certificate for and on behalf of
the Trust.
Dated:
ENSERCH CAPITAL I
By:_______________________________
not in his (her)
individual capacity, but
solely as Administrative
Trustee
Countersigned and Registered:
TEXAS UTILITIES SERVICES INC.,
Transfer Agent and Registrar
By:_________________________________
(Authorized Signature)
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Trust Security to:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Insert assignee's social security or tax identification number)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Insert address and zip code of assignee)
of the Preferred Trust Securities represented by this Certificate
and irrevocably appoints
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
attorney to transfer such Preferred Trust Securities Certificate
on the books of the
Trust. The attorney may substitute another to act for him or
her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Trust Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Trust Securities Certificate)
Exhibit 4(g)
__________________________________________
ENSERCH CORPORATION
TO
THE BANK OF NEW YORK
Trustee
_________
INDENTURE
(FOR UNSECURED SUBORDINATED DEBT SECURITIES
RELATING TO TRUST SECURITIES)
DATED AS OF ________ __, ____
__________________________________________
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITAL OF THE COMPANY . . . . . . . . . . . . . . . . . 1
ARTICLE ONE . . . . . . . . . . . . . . . . . . . . . . 1
Definitions and Other Provisions of General
Application . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . 2
Additional Interest . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . 3
Governmental Authority . . . . . . . . . . . . 3
Government Obligations . . . . . . . . . . . . 3
Guarantee . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . 5
Preferred Trust Securities . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . 6
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE PART OF THE INDENTURE.
<PAGE>
Security Register and Security Registrar . . . 6
Senior Indebtedness . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . 7
Trust . . . . . . . . . . . . . . . . . . . . 7
Trust Agreement . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . 9
SECTION 105. Notices, etc. to Trustee and Company . . . 11
SECTION 106. Notice to Holders of Securities; Waiver . 11
SECTION 107. Conflict with Trust Indenture Act . . . . 12
SECTION 108. Effect of Headings and Table of Contents . 12
SECTION 109. Successors and Assigns . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays . . . . . . . . . . . . . . 13
ARTICLE TWO . . . . . . . . . . . . . . . . . . . . . . 13
Security Forms . . . . . . . . . . . . . . . . . . . . . 13
SECTION 201. Forms Generally . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE THREE . . . . . . . . . . . . . . . . . . . . . 14
The Securities . . . . . . . . . . . . . . . . . . . . . 14
SECTION 301. Amount Unlimited; Issuable in Series . . . 14
SECTION 302. Denominations . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 304. Temporary Securities . . . . . . . . . . . 20
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 308. Persons Deemed Owners . . . . . . . . . . 24
SECTION 309. Cancellation by Security Registrar . . . . 24
SECTION 310. Computation of Interest . . . . . . . . . 24
SECTION 311. Extension of Interest Payment . . . . . . 25
SECTION 312. Additional Interest. . . . . . . . . . . . 25
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . 25
Redemption of Securities . . . . . . . . . . . . . . . . 25
SECTION 401. Applicability of Article . . . . . . . . . 25
SECTION 402. Election to Redeem; Notice to Trustee . . 25
SECTION 403. Selection of Securities to Be Redeemed . . 26
SECTION 404. Notice of Redemption . . . . . . . . . . . 26
SECTION 405. Securities Payable on Redemption Date . . 27
SECTION 406. Securities Redeemed in Part . . . . . . . 28
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . 28
Sinking Funds . . . . . . . . . . . . . . . . . . . . . 28
SECTION 501. Applicability of Article . . . . . . . . . 28
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . . . 28
SECTION 503. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE SIX . . . . . . . . . . . . . . . . . . . . . . 30
Covenants . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 601. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 602. Maintenance of Office or Agency . . . . . 30
SECTION 603. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 604. Corporate Existence . . . . . . . . . . . 32
SECTION 605. Maintenance of Properties . . . . . . . . 32
SECTION 606. Annual Officer's Certificate as to
Compliance. . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 607. Waiver of Certain Covenants . . . . . . . 33
SECTION 608. Restriction on Payment of Dividends . . . 33
SECTION 609. Maintenance of Trust Existence . . . . . . 33
SECTION 610. Rights of Holders of Preferred Trust
Securities . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE SEVEN . . . . . . . . . . . . . . . . . . . . . 34
Satisfaction and Discharge . . . . . . . . . . . . . . . 34
SECTION 701. Satisfaction and Discharge of Securities . 34
SECTION 702. Satisfaction and Discharge of Indenture . 37
SECTION 703. Application of Trust Money . . . . . . . . 37
ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . 38
Events of Default; Remedies . . . . . . . . . . . . . . 38
SECTION 801. Events of Default . . . . . . . . . . . . 38
SECTION 802. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . 41
SECTION 804. Trustee May File Proofs of Claim . . . . . 41
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . 42
SECTION 806. Application of Money Collected . . . . . . 42
SECTION 807. Limitation on Suits . . . . . . . . . . . 43
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . . . . 44
SECTION 809. Restoration of Rights and Remedies . . . . 44
SECTION 810. Rights and Remedies Cumulative . . . . . . 44
SECTION 811. Delay or Omission Not Waiver . . . . . . . 44
SECTION 812. Control by Holders of Securities . . . . . 44
SECTION 813. Waiver of Past Defaults . . . . . . . . . 45
SECTION 814. Undertaking for Costs . . . . . . . . . . 45
SECTION 815. Waiver of Stay or Extension Laws . . . . . 46
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . 46
The Trustee . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 901. Certain Duties and Responsibilities . . . 46
SECTION 902. Notice of Defaults . . . . . . . . . . . . 47
SECTION 903. Certain Rights of Trustee . . . . . . . . 47
SECTION 904. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . . . 48
SECTION 905. May Hold Securities . . . . . . . . . . . 48
SECTION 906. Money Held in Trust . . . . . . . . . . . 49
SECTION 907. Compensation and Reimbursement . . . . . . 49
SECTION 908. Disqualification; Conflicting Interests. . 50
SECTION 909. Corporate Trustee Required; Eligibility . 50
SECTION 910. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 911. Acceptance of Appointment by Successor . . 53
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . 54
SECTION 913. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 914. Co-trustees and Separate Trustees. . . . . 55
SECTION 915. Appointment of Authenticating Agent . . . 56
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . 58
Holders' Lists and Reports by Trustee and Company . . . 58
SECTION 1001. Lists of Holders . . . . . . . . . . . . 58
SECTION 1002. Reports by Trustee and Company . . . . . 58
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . 59
Consolidation, Merger, Conveyance or Other Transfer . . 59
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1102. Successor Person Substituted . . . . . . 59
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . 60
Supplemental Indentures . . . . . . . . . . . . . . . . 60
SECTION 1201. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1202. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1203. Execution of Supplemental Indentures . . 63
SECTION 1204. Effect of Supplemental Indentures . . . . 63
SECTION 1205. Conformity With Trust Indenture Act . . . 64
SECTION 1206. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1207. Modification Without Supplemental
Indenture . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE THIRTEEN . . . . . . . . . . . . . . . . . . . . 64
Meetings of Holders; Action Without Meeting . . . . . . 64
SECTION 1301. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1302. Call, Notice and Place of Meetings . . . 65
SECTION 1303. Persons Entitled to Vote at Meetings . . 65
SECTION 1304. Quorum; Action . . . . . . . . . . . . . 66
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment of Meetings . . . 67
SECTION 1306. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1307. Action Without Meeting . . . . . . . . . 68
ARTICLE FOURTEEN . . . . . . . . . . . . . . . . . . . . 68
Immunity of Incorporators, Shareholders Officers and
Directors . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1401. Liability Solely Corporate . . . . . . . 68
ARTICLE FIFTEEN . . . . . . . . . . . . . . . . . . . . 69
Subordination of Securities . . . . . . . . . . . . . . 69
SECTION 1501. Securities Subordinate to Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1502. Payment Over of Proceeds of Securities . 69
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1504. Subrogation . . . . . . . . . . . . . . . 72
SECTION 1505. Obligation of the Company Unconditional . 72
SECTION 1506. Priority of Senior Indebtedness Upon
Maturity . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1507. Trustee as Holder of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1508. Notice to Trustee to Effectuate
Subordination . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1510. Trustee Has No Fiduciary Duty to Holders
of Senior Indebtedness . . . . . . . . . . . . . . . . . 74
SECTION 1511. Paying Agents Other Than the Trustee . . 74
SECTION 1512. Rights of Holders of Senior Indebtedness
Not Impaired . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1513. Effect of Subordination Provisions;
Termination . . . . . . . . . . . . . . . . . . . . . . 74
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . 76
Signatures and Seals . . . . . . . . . . . . . . . . . . . . 76
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . 78
<PAGE>
ENSERCH CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF ________ __, ____
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Sect.310 (a)(1) . . . . . . . . . . . . . . . . . . . 909
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 909
(a)(3) . . . . . . . . . . . . . . . . . . . . . . 914
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 908
910
Sect.311 (a) . . . . . . . . . . . . . . . . . . . . . 913
(b) . . . . . . . . . . . . . . . . . . . . . . . 913
(c) . . . . . . . . . . . . . . . . . . . . . . . 913
Sect.312 (a) . . . . . . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . . . . . . . 1001
Sect.313 (a) . . . . . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . . . . . . . 1002
Sect.314 (a) . . . . . . . . . . . . . . . . . . . . . 1002
(a)(4) . . . . . . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . 102
Sect.315 (a) . . . . . . . . . . . . . . . . . . . . . 901
903
(b) . . . . . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . . . . . 901
(d) . . . . . . . . . . . . . . . . . . . . . . . 901
(e) . . . . . . . . . . . . . . . . . . . . . . . 814
Sect.316 (a) . . . . . . . . . . . . . . . . . . . . . 812
813
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . 802
812
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . 813
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 808
Sect.317 (a)(1) . . . . . . . . . . . . . . . . . . . 803
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . . . . . . . . 603
Sect.318 (a) . . . . . . . . . . . . . . . . . . . . . 107
<PAGE>
INDENTURE, dated as of ________ __, ____, between
ENSERCH CORPORATION, a corporation duly organized and
existing under the laws of the State of Texas (herein called
the "Company"), having its principal office at 1601 Bryan
Street, Dallas, Texas 75201, and THE BANK OF NEW YORK, a
corporation of the State of New York, having its principal
corporate trust office at 101 Barclay Street, New York, New
York 10286, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured subordinated debentures, notes
or other evidences of indebtedness (herein called the
"Securities"), in an unlimited aggregate principal amount to
be issued from time to time in one or more series as
contemplated herein; and all acts necessary to make this
Indenture a valid agreement of the Company have been
performed.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires, capitalized terms used herein shall have the
meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of
any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, 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 terms used herein without definition which
are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to
them therein;
(c) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the
United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles
as are generally accepted in the United States at the
date of such computation or, at the election of the
Company from time to time, at the date of the execution
and delivery of this Indenture; provided, however, that
in determining generally accepted accounting principles
applicable to the Company, the Company shall, to the
extent required, conform to any order, rule or regulation
of any administrative agency, regulatory authority or
other governmental body having jurisdiction over the
Company; and
(d) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or
other subdivision.
Certain terms, used principally in Article Nine, are
defined in that Article.
"ACT", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"ADDITIONAL INTEREST" has the meaning specified in
Section 312.
"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 through one or more intermediaries,
whether through the ownership of voting securities, by
contract or otherwise; and the terms "CONTROLLING" and
"CONTROLLED" have meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person (other than
the Company or an Affiliate of the Company) authorized by
the Trustee pursuant to Section 915 to act on behalf of the
Trustee to authenticate one or more series of Securities.
"AUTHORIZED OFFICER" means the Chairman of the
Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer, or any other officer or agent of the
Company duly authorized by the Board of Directors to act in
respect of matters relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of
directors of the Company or any committee thereof duly
authorized to act in respect of matters relating to this
Indenture.
"BOARD RESOLUTION" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or
other location are generally authorized or required by law,
regulation or executive order to remain closed, except as
may be otherwise specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Securities Exchange Act of 1934, as amended, or, if at
any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act,
then the body, if any, performing such duties at such time.
"COMPANY" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor
Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written
request or order signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at
the date of execution and delivery of this Indenture is
located at 101 Barclay Street, New York, New York 10286.
"CORPORATION" means a corporation, association,
company, joint stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in
Section 307.
"DOLLAR" or "$" means a dollar or other equivalent
unit in such coin or currency of the United States as at the
time shall be legal tender for the payment of public and
private debts.
"EVENT OF DEFAULT" has the meaning specified in
Section 801.
"GOVERNMENTAL AUTHORITY" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any of the foregoing, or any
department, agency, authority or other instrumentality of
any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the
principal of and interest on which are
unconditionally guaranteed by, the United States and
entitled to the benefit of the full faith and credit
thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership
interest in obligations described in clause (a)
above or in any specific interest or principal
payments due in respect thereof; provided, however,
that the custodian of such obligations or specific
interest or principal payments shall be a bank or
trust company (which may include the Trustee or any
Paying Agent) subject to Federal or state
supervision or examination with a combined capital
and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the
holders of such certificates, depositary receipts or
other instruments the full amount received by such
custodian in respect of such obligations or specific
payments and shall not be permitted to make any
deduction therefrom.
"GUARANTEE" means the guarantee agreement delivered
from the Company to a Trust, for the benefit of the
holders of Preferred Trust Securities issued by such
Trust.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms
of a particular series of Securities established as
contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to
any Security, means the Stated Maturity of an installment
of interest on such Security.
"MATURITY", when used with respect to any Security,
means the date on which the principal of such Security or
an installment of principal becomes due and payable as
provided in such Security or in this Indenture, whether at
the Stated Maturity, by declaration of acceleration, upon
call for redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"OUTSTANDING", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled or
delivered to the Securities Registrar for
cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to
it and the Company that such Securities are held by a
bona fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the
Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series, have given any
request, demand, authorization, direction, notice,
consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders of Securities, Securities
owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such
obligor owns all Securities Outstanding under this
Indenture, or all Outstanding Securities of each such
series, as the case may be, determined without regard to
this provision) shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded;
provided, however, that Securities so owned which have
been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor; and provided,
further, that, in the case of any Security the principal
of which is payable from time to time without presentment
or surrender, the principal amount of such Security that
shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original
principal amount thereof less the aggregate amount of
principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the
Company, authorized by the Company to pay the principal
of, and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"PERSON" means any individual, corporation,
partnership, joint venture, trust or unincorporated
organization or any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the
Securities of any series, means the place or places,
specified as contemplated by Section 301, at which,
subject to Section 602, principal of and premium, if any,
and interest, if any, on the Securities of such series are
payable.
"PREDECESSOR SECURITY" of any particular Security
means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed (to the extent lawful) to
evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"PREFERRED TRUST SECURITIES" means any preferred
trust interests issued by a Trust or similar securities
issued by permitted successors to such Trust in accordance
with the Trust Agreement pertaining to such Trust.
"REDEMPTION DATE", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any
Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated
by Section 301.
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"SECURITIES" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this
Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SENIOR INDEBTEDNESS" means all obligations (other
than non-recourse obligations and the indebtedness issued
under this Indenture) of, or guaranteed or assumed by, the
Company for borrowed money, including both senior and
subordinated indebtedness for borrowed money (other than
the Securities), or for the payment of money relating to
any lease which is capitalized on the consolidated balance
sheet of the Company and its subsidiaries in accordance
with generally accepted accounting principles as in effect
from time to time, or evidenced by bonds, debentures,
notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations,
whether existing as of the date of this Indenture or
subsequently incurred by the Company unless, in the case
of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same
or the assumption or guarantee of the same expressly
provides that such indebtedness, renewal, extension or
refunding is not superior in right of payment to or is
pari passu with the Securities; provided that the
Company's obligations under the Guaranty shall not be
deemed to be Senior Indebtedness.
"SPECIAL RECORD DATE" for the payment of any
Defaulted Interest on the Securities of any series means a
date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal of
such obligation or such installment of principal or
interest is stated to be due and payable (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"TRUST" means ENSERCH Capital I, a statutory business
trust formed under the laws of the State of Delaware, or
any other Trust designated pursuant to Section 301 hereof
or any permitted successor under the Trust Agreement
pertaining to such Trust.
"TRUST AGREEMENT" means the Amended and Restated
Trust Agreement, dated as of ________ __, ____, relating
to ENSERCH Capital I, or an Amended and Restated Trust
Agreement relating to a Trust designated pursuant to
Section 301 hereof, in each case, among the Company, as
Depositor, the trustees named therein and several holders
referred to therein as they may be amended from time to
time.
"TRUST INDENTURE ACT" means, as of any time, the
Trust Indenture Act of 1939, or any successor statute, as
in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor
Trustee shall have become such with respect to one or more
series of Securities pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities
of that series.
"UNITED STATES" means the United States of America,
its Territories, its possessions and other areas subject
to its political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action
(including any covenants compliance with which constitutes
a condition precedent) have been complied with and an
Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such
application or request as to which the furnishing of such
documents is specifically required by any provision of
this Indenture relating to such particular application or
request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement that each Person signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and
scope of the examination or investigation upon which
the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each
such Person, such Person has made such examination
or investigation as is necessary to enable such
Person to express an informed opinion as to whether
or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion
of each such Person, such condition or covenant has
been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required
to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such Person may
certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that
the certificate or opinion or representations with
respect to the matters upon which such Officer's
Certificate or opinion are based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers
of the Company stating that the information with respect
to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or
opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officer's Certificate,
Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect
as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or
delivered as of the date or dates required with respect
to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary
notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at
the request of the Company which could not have been
taken had the original document or instrument not
contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and
effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities
issued under the authority of such defective document or
instrument shall nevertheless be the valid obligations of
the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding
Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other action provided by this Indenture to be made,
given or taken by Holders may be embodied in and
evidenced by one or more instruments of
substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing
or, alternatively, may be embodied in and evidenced
by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and
held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and
any such record. Except as herein otherwise
expressly provided, such action shall become
effective when such instrument or instruments or
record or both are delivered to the Trustee and,
where it is hereby expressly required, to the
Company. Such instrument or instruments and any
such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding
by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Sec-
tion 901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section. The record of any meeting of Holders shall
be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be
proved by the affidavit of a witness of such
execution or by a certificate of a notary public or
other officer authorized by law to take
acknowledgments of deeds, certifying that the
individual signing such instrument or writing
acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the
Company deem sufficient. Where such execution is by
a signer acting in a capacity other than his
individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his
authority.
(c) The principal amount and serial numbers of
Securities held by any Person, and the date of
holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future Holder
of the same Security and the Holder of every
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 Trustee or the Company in reliance
thereon, whether or not notation of such action is
made upon such Security.
(e) Until such time as written instruments
shall have been delivered to the Trustee with
respect to the requisite percentage of principal
amount of Securities for the action contemplated by
such instruments, any such instrument executed and
delivered by or on behalf of a Holder may be revoked
with respect to any or all of such Securities by
written notice by such Holder or any subsequent
Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series authenticated and
delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form
approved by the Trustee as to any action taken by
such Act of Holders. If the Company shall so
determine, new Securities of any series so modified
as to conform, in the opinion of the Trustee and the
Company, to such action may be prepared and executed
by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities
of such series.
(g) If the Company shall solicit from Holders
any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company
may, at its option, fix in advance a record date for
the determination of Holders entitled to give such
request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall
have no obligation to do so. If such a record date
is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may
be given before or after such record date, but only
the Holders of record at the close of business on
the record date shall be deemed to be Holders for
the purposes of determining whether Holders of the
requisite proportion of the Outstanding Securities
have authorized or agreed or consented to such
request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose
the Outstanding Securities shall be computed as of
the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction,
notice, consent, election, waiver or Act of Holders or
other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with, the
Trustee by any Holder or by the Company, or the Company
by the Trustee or by any Holder, shall be sufficient for
every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered
personally to an officer or other responsible employee of
the addressee, or transmitted by facsimile transmission
or other direct written electronic means to such
telephone number or other electronic communications
address as the parties hereto shall from time to time
designate, or transmitted by certified or registered
mail, charges prepaid, to the applicable address set
opposite such party's name below or to such other address
as either party hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street - 21W
New York, New York 10286
Attention: Vice President, Corporate Trust
Administration
Telephone: (212) 815-5375
Telecopy: (212) 815-5915
If to the Company, to:
ENSERCH Corporation
1601 Bryan Street
Dallas, Texas 75201
Attention:
Telephone:
Telecopy:
Any communication contemplated herein shall be
deemed to have been made, given, furnished and filed if
personally delivered, on the date of delivery, if
transmitted by facsimile transmission or other direct
written electronic means, on the date of transmission,
and if transmitted by certified or registered mail, on
the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given, and
shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as
it appears in the Security Register, not later than the
latest date, if any, and not earlier than the earliest
date, if any, prescribed for the giving of such notice.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be
impracticable to give such notice to Holders by mail,
then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case where notice to
Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of
such notice with respect to other Holders.
Any notice required by this Indenture may be
waived in writing by the Person entitled to receive such
notice, either before or after the event otherwise to be
specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits,
qualifies or conflicts with another provision hereof
which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other
provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this
Indenture and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture
by the Company and Trustee shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the
Securities 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 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other than
the parties hereto, their successors hereunder, the
Holders and, so long as the notice described in Section
1513 hereof has not been given, the holders of Senior
Indebtedness, any benefit or any legal or equitable
right, remedy or claim under this Indenture; provided,
however, that for so long as any Preferred Trust
Securities remain outstanding, the holders of such
Preferred Trust Securities, subject to certain
limitations set forth in this Indenture, may enforce the
Company's obligations hereunder directly against the
Company as third party beneficiaries of this Indenture
without first proceeding against the Trust issuing such
Preferred Trust Securities.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE LAW
OF ANY OTHER JURISDICTION SHALL BE MANDATORILY
APPLICABLE.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or
of the Securities other than a provision in Securities of
any series, or in the Board Resolution or Officer's
Certificate which establishes the terms of the Securities
of such series, which specifically states that such
provision shall apply in lieu of this Section) payment of
interest or principal and premium, if any, need not be
made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of
Payment, except that if such Business Day is in the next
succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with
the same force and effect, and in the same amount, as if
made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, as the case may be, and, if such
payment is made or duly provided for on such Business
Day, no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be,
to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall
be in substantially the form or forms thereof established
in the indenture supplemental hereto establishing such
series or in a Board Resolution establishing such series,
or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case
with such appropriate insertions, omissions,
substitutions and other variations as are required or
permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends
or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their
execution of the Securities. If the form or forms of
Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a
Board Resolution, such Board Resolution and Officer's
Certificate, if any, shall be delivered to the Trustee at
or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and
delivery of such Securities.
Unless otherwise specified as contemplated by
Sections 301 or 1201(g), the Securities of each series
shall be issuable in registered form without coupons.
The definitive Securities shall be produced in such
manner as shall be determined by the officers executing
such Securities, as evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
The Trustee's certificate of authentication
shall be in substantially the form set forth below:
This is one of the Securities of the
series designated therein referred to in the
within-mentioned Indenture.
Dated:_________________________________
as Trustee
By: ______________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited; provided, however, that all
Securities shall be issued to a Trust in exchange for
securities of the Company or to evidence loans by a Trust
of the proceeds of the issuance of Preferred Trust
Securities of such Trust plus the amount deposited by the
Company with such Trust from time to time.
The Securities may be issued in one or more
series. Prior to the authentication and delivery of
Securities of any series there shall be established by
specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a
supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series
(which shall distinguish the Securities of such
series from Securities of all other series);
(b) any limit upon the aggregate principal
amount of the Securities of such series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered
upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of such series
pursuant to Section 304, 305, 306, 406 or 1206 and
except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of
such series shall be payable on any Interest Payment
Date, if other than the Persons in whose names such
Securities (or one or more Predecessor Securities)
are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal
of the Securities of such series is payable or any
formulary or other method or other means by which
such date or dates shall be determined, by reference
to an index or other fact or event ascertainable
outside of this Indenture or otherwise (without
regard to any provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the Securities
of such series shall bear interest, if any
(including the rate or rates at which overdue
principal shall bear interest, if different from the
rate or rates at which such Securities shall bear
interest prior to Maturity, and, if applicable, the
rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or
other method or other means by which such rate or
rates shall be determined, by reference to an index
or other fact or event ascertainable outside of this
Indenture or otherwise; the date or dates from which
such interest shall accrue; the Interest Payment
Dates on which such interest shall be payable and
the Regular Record Date, if any, for the interest
payable on such Securities on any Interest Payment
Date; the right of the Company, if any, to extend
the interest payment periods and the duration of any
such extension as contemplated by Section 311; and
the basis of computation of interest, if other than
as provided in Section 310;
(f) the place or places at which or methods by
which (1) the principal of and premium, if any, and
interest, if any, on Securities of such series shall
be payable, (2) registration of transfer of
Securities of such series may be effected, (3)
exchanges of Securities of such series may be
effected and (4) notices and demands to or upon the
Company in respect of the Securities of such series
and this Indenture may be served; the Security
Registrar for such series; and if such is the case,
that the principal of such Securities shall be
payable without presentment or surrender thereof;
(g) the period or periods within which, or the
date or dates on which, the price or prices at which
and the terms and conditions upon which the
Securities of such series may be redeemed, in whole
or in part, at the option of the Company and any
restrictions on such redemptions, including but not
limited to a restriction on a partial redemption by
the Company of the Securities of any series,
resulting in delisting of such Securities from any
national exchange;
(h) the obligation or obligations, if any, of
the Company to redeem or purchase the Securities of
such series pursuant to any sinking fund or other
mandatory redemption provisions or at the option of
a Holder thereof and the period or periods within
which or the date or dates on which, the price or
prices at which and the terms and conditions upon
which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such
obligation, and applicable exceptions to the
requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the
Holder;
(i) the denominations in which Securities of
such series shall be issuable if other than
denominations of $25 and any integral multiple
thereof;
(j) the currency or currencies, including com-
posite currencies, in which payment of the principal
of and premium, if any, and interest, if any, on the
Securities of such series shall be payable (if other
than in Dollars);
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series
are to be payable, at the election of the Company or
a Holder thereof, in a coin or currency other than
that in which the Securities are stated to be
payable, the period or periods within which and the
terms and conditions upon which, such election may
be made;
(l) if the principal of or premium, if any, or
interest, if any, on the Securities of such series
are to be payable, or are to be payable at the
election of the Company or a Holder thereof, in
securities or other property, the type and amount of
such securities or other property, or the formulary
or other method or other means by which such amount
shall be determined, and the period or periods
within which, and the terms and conditions upon
which, any such election may be made;
(m) if the amount payable in respect of
principal of or premium, if any, or interest, if
any, on the Securities of such series may be
determined with reference to an index or other fact
or event ascertainable outside this Indenture, the
manner in which such amounts shall be determined to
the extent not established pursuant to clause (e) of
this paragraph;
(n) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series which shall be payable
upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(o) any Events of Default, in addition to
those specified in Section 801, with respect to the
Securities of such series, and any covenants of the
Company for the benefit of the Holders of the
Securities of such series, in addition to those set
forth in Article Six;
(p) the terms, if any, pursuant to which the
Securities of such series may be converted into or
exchanged for shares of capital stock or other
securities of the Company or any other Person;
(q) the obligations or instruments, if any,
which shall be considered to be Government
Obligations in respect of the Securities of such
series denominated in a currency other than Dollars
or in a composite currency, and any additional or
alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as
provided in Section 701;
(r) if the Securities of such series are to be
issued in global form, (i) any limitations on the
rights of the Holder or Holders of such Securities
to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any
limitations on the rights of the Holder or Holders
thereof to obtain certificates therefor in
definitive form in lieu of temporary form and (iii)
any and all other matters incidental to such
Securities;
(s) if the Securities of such series are to be
issuable as bearer securities, any and all matters
incidental thereto which are not specifically
addressed in a supplemental indenture as
contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to
clause (r) of this paragraph, any limitations on the
rights of the Holders of the Securities of such
Series to transfer or exchange such Securities or to
obtain the registration of transfer thereof; and if
a service charge will be made for the registration
of transfer or exchange of Securities of such series
the amount or terms thereof;
(u) any exceptions to Section 113, or
variation in the definition of Business Day, with
respect to the Securities of such series;
(v) the designation of the Trust to which
Securities of such series are to be issued; and
(w) any other terms of the Securities of such
series not inconsistent with the provisions of this
Indenture.
All Securities of any one series shall be
substantially identical, except as to principal amount
and date of issue and except as may be set forth in the
terms of such series as contemplated above. The
Securities of each series shall be subordinated in right
of payment to Senior Indebtedness as provided in Article
Fifteen.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, the
Securities of each series shall be issuable in
denominations of $25 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, the
Securities shall be executed on behalf of the Company by
an Authorized Officer and may have the corporate seal of
the Company affixed thereto or reproduced thereon
attested by any other Authorized Officer or by the
Secretary or an Assistant Secretary of the Company. The
signature of any or all of these officers on the Secu-
rities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
execution Authorized Officers or the Secretary or an
Assistant Secretary of the Company shall bind the
Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver
Securities of a series, for original issue, at one time
or from time to time in accordance with the Company Order
referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing
the form or forms and terms of such series, as
provided in Sections 201 and 301;
(b) a Company Order requesting the
authentication and delivery of such Securities and,
to the extent that the terms of such Securities
shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in
an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated
by Sections 201 and 301, establishing such terms;
(c) the Securities of such series, executed on
behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities
have been duly authorized by the Company and
have been established in conformity with the
provisions of this Indenture;
(ii) the terms of such Securities have
been duly authorized by the Company and have
been established in conformity with the
provisions of this Indenture; and
(iii) such Securities, when authenticated
and delivered by the Trustee and issued and
delivered by the Company in the manner and
subject to any conditions specified in such
Opinion of Counsel, will have been duly issued
under this Indenture and will constitute valid
and legally binding obligations of the Company,
entitled to the benefits provided by this
Indenture, and enforceable in accordance with
their terms, subject, as to enforcement, to
laws relating to or affecting generally the en-
forcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law).
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will materially or
adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable
to the Trustee.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities,
each Security shall be dated the date of its
authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, no
Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of
authentication substantially in the form provided for
herein executed by the Trustee or an Authenticating Agent
by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits
of this Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered
hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the
Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply
with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall
never be entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive
Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate insertions,
omissions, substitutions and other variations as the
officers executing such Securities may determine, as
evidenced by their execution of such Securities;
provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or
exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
after the preparation of definitive Securities of such
series, the temporary Securities of such series shall be
exchangeable, without charge to the Holder thereof, for
definitive Securities of such series upon surrender of
such temporary Securities at the office or agency of the
Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of
temporary Securities for such exchange, the Company
shall, except as aforesaid, execute and the Trustee shall
authenticate and deliver in exchange therefor definitive
Securities of the same series, of authorized
denominations and of like tenor and aggregate principal
amount.
Until exchanged in full as hereinabove
provided, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept in each
office designated pursuant to Section 602, with respect
to the Securities of each series, a register (all
registers kept in accordance with this Section being
collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration
of Securities of such series and the registration of
transfer thereof. The Company shall designate one Person
to maintain the Security Register for the Securities of
each series on a consolidated basis, and such Person is
referred to herein, with respect to such series, as the
"Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one or more of
its offices as an office in which a register with respect
to the Securities of one or more series shall be
maintained, and the Company may designate itself the
Security Registrar with respect to one or more of such
series. The Security Register shall be open for
inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, upon surrender for registration of transfer of
any Security of such series at the office or agency of
the Company maintained pursuant to Section 602 in a Place
of Payment for such series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or
more new Securities of the same series, of authorized
denominations and of like tenor and aggregate principal
amount.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, any Security of such series may be exchanged at
the option of the Holder, for one or more new Securities
of the same series, of authorized denominations and of
like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities delivered upon any registration
of transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to
the Company, the Trustee or the Security Registrar, as
the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, no
service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in
connection with any registration of transfer or exchange
of Securities, other than exchanges pursuant to Section
304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or
to provide for the registration of transfer of or the
exchange of (a) Securities of any series during a period
of 15 days immediately preceding the date notice is to be
given identifying the serial numbers of the Securities of
such series called for redemption (or stating that all
Outstanding Securities of such series are called for
redemption) or (b) any Security so selected for
redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new
Security of the same series, and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the
ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any
agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security
is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same
series, and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone other than the Holder of
such new Security, and any such new Security shall be
entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of
such series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record
Date for such interest.
Subject to Section 311, any interest on any
Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on a date (herein called a "Special
Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the
date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of the
proposed payment, such money when deposited to be
held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the
name and at the expense of the Company, shall
promptly cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at the
address of such Holder as it appears in the Security
Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on such Special Record Date.
(b) The Company may make payment of any
Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which
such Securities may be listed, and upon such notice
as may be required by such exchange, if, after
notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this
Section and Section 305, each Security delivered under
this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the
absolute owner of such Security for the purpose of
receiving payment of principal of and premium, if any,
and (subject to Sections 305 and 307) interest, if any,
on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, re-
demption, registration of transfer or exchange shall, if
surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and, if
not theretofore canceled, shall be promptly canceled by
the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be
promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Security Registrar
shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and
the Security Registrar shall promptly deliver a
certificate of disposition to the Trustee and the Company
unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned
to it. The Security Registrar shall promptly deliver
evidence of any cancellation of a Security in accordance
with this Section 309 to the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, interest on
the Securities of each series shall be computed on the
basis of a 360-day year consisting of twelve 30-day
months and for any period shorter than a full month, on
the basis of the actual number of days elapsed in such
period.
SECTION 311. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so
long as the Company is not in default in the payment of
interest on the Securities of any series hereunder, to
extend interest payment periods on all Securities of one
or more series, if so specified as contemplated by
Section 301 with respect to such Securities and upon such
terms as may be specified as contemplated by Section 301
with respect to such Securities.
SECTION 312. ADDITIONAL INTEREST.
So long as any Preferred Trust Securities
remain outstanding, if the Trust which issued such
Preferred Trust Securities shall be required to pay, with
respect to its income derived from the interest payments
on the Securities of any series, any amounts for or on
account of any taxes, duties, assessments or governmental
charges of whatever nature imposed by the United States,
or any other taxing authority, then, in any such case,
the Company will pay as interest on such series such
additional interest ("Additional Interest") as may be
necessary in order that the net amounts received and
retained by such Trust after the payment of such taxes,
duties, assessments or governmental charges shall result
in such Trust's having such funds as it would have had in
the absence of the payment of such taxes, duties,
assessments or governmental charges.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities
of such series) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or an
Officer's Certificate. The Company shall, at least 45
days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemp-
tion Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction
on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant
to an election of the Company which is subject to a
condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officer's
Certificate evidencing compliance with such restriction
or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series
are to be redeemed, the particular Securities to be
redeemed shall be selected by the Trustee from the
Outstanding Securities of such series not previously
called for redemption, by such method as shall be
provided for any particular series, or, in the absence of
any such provision, by such method as the Trustee shall
deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the
minimum authorized denomination for Securities of such
series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination
larger than the minimum authorized denomination for
Securities of such series; provided, however, that if, as
indicated in an Officer's Certificate, the Company shall
have offered to purchase all or any principal amount of
the Securities then Outstanding of any series, and less
than all of such Securities as to which such offer was
made shall have been tendered to the Company for such
purchase, the Trustee, if so directed by Company Order,
shall select for redemption all or any principal amount
of such Securities which have not been so tendered.
The Trustee shall promptly notify the Company
and the Security Registrar in writing of the Securities
selected for redemption and, in the case of any
Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any
series are to be redeemed, the identification of the
particular Securities to be redeemed and the portion
of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption
Price, together with accrued interest, if any, to
the Redemption Date, will become due and payable
upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such Securities
are to be surrendered for payment of the Redemption
Price and accrued interest, if any, unless it shall
have been specified as contemplated by Section 301
with respect to such Securities that such surrender
shall not be required,
(f) that the redemption is for a sinking or
other fund, if such is the case, and
(g) such other matters as the Company shall
deem desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect
to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice,
such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that
such redemption shall be conditional upon the receipt by
the Paying Agent or Agents for such Securities, on or
prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any,
and interest, if any, on such Securities and that if such
money shall not have been so received such notice shall
be of no force or effect and the Company shall not be
required to redeem such Securities. In the event that
such notice of redemption contains such a condition and
such money is not so received, the redemption shall not
be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of
redemption was given, that such money was not so received
and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to
have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered
for payment upon such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name
and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the
case of an unconditional notice of redemption, the
Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or
portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to
such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to
the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business
on the related Regular Record Date according to the terms
of such Security and subject to the provisions of Section
307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to
be redeemed only in part at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge, a new Security
or Securities of the same series, of any authorized
denomination requested by such Holder and of like tenor
and in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of the
Securities of any series, except as otherwise specified
as contemplated by Section 301 for Securities of such
series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 502. Each
sinking fund payment shall be applied to the redemption
of Securities of the series in respect of which it was
made as provided for by the terms of such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously called
for redemption) of a series in respect of which a
mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series which have
been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of such mandatory sinking
fund payment with respect to the Securities of such
series; provided, however, that no Securities shall be
applied in satisfaction of a mandatory sinking fund
payment if such Securities shall have been previously so
applied. Securities so applied shall be received and
credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking
fund payment date for the Securities of any series, the
Company shall deliver to the Trustee an Officer's
Certificate specifying:
(a) the amount of the next succeeding
mandatory sinking fund payment for such series;
(b) the amount, if any, of the optional
sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by the
payment of cash;
(e) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by
delivering and crediting Securities of such series
pursuant to Section 502 and stating the basis for
such credit and that such Securities have not
previously been so credited, and the Company shall
also deliver to the Trustee any Securities to be so
delivered. If the Company shall not deliver such
Officer's Certificate, the next succeeding sinking
fund payment for such series shall be made entirely
in cash in the amount of the mandatory sinking fund
payment. Not less than 30 days before each such
sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 403
and cause notice of the redemption thereof to be
given in the name of and at the expense of the
Company in the manner provided in Section 404. Such
notice having been duly given, the redemption of
such Securities shall be made upon the terms and in
the manner stated in Sections 405 and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and
premium, if any, and interest, if any (including
Additional Interest), on the Securities of each series in
accordance with the terms of such Securities and this
Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of
Payment for the Securities of each series an office or
agency where payment of such Securities shall be made,
where the registration of transfer or exchange of such
Securities may be effected and where notices and demands
to or upon the Company in respect of such Securities and
this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency
and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the
Company shall fail to maintain any such required office
or agency in respect of Securities of any series, or
shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may
be served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time
designate one or more other offices or agencies with
respect to the Securities of one or more series, for any
or all of the foregoing purposes and may from time to
time rescind such designations; provided, however, that,
unless otherwise specified as contemplated by Section 301
with respect to the Securities of such series, no such
designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency
for such purposes in each Place of Payment for such
Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to
the Trustee, and prompt notice to the Holders in the
manner specified in Section 106, of any such designation
or rescission and of any change in the location of any
such other office or agency.
Anything herein to the contrary
notwithstanding, any office or agency required by this
Section may be maintained at an office of the Company, in
which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD
IN TRUST.
If the Company shall at any time act as its own
Paying Agent with respect to the Securities of any
series, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any,
on any of such Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and premium or interest
so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. The
Company shall promptly notify the Trustee of any failure
by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any,
or interest, if any, on such Securities.
Whenever the Company shall have one or more
Paying Agents for the Securities of any series, it shall,
on or before each due date of the principal of and
premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums
sufficient (without duplication) to pay the principal and
premium or interest so becoming due, such sums to be held
in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify
the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for
the Securities of any series, other than the Company or
the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section,
that such Paying Agent shall:
(a) hold all sums held by it for the payment
of the principal of and premium, if any, or
interest, if any, on such Securities in trust for
the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any failure by
the Company (or any other obligor upon such
Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any
such failure, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent and furnish to
the Trustee such information as it possesses
regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or
such Paying Agent and, if so stated in a Company Order
delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for
the payment of the principal of and premium, if any, or
interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if any,
or interest has become due and payable shall be paid to
the Company on Company Request, or, if then held by the
Company, shall be discharged from such trust; and, upon
such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a
Holder of an Outstanding Security, look only to the
Company for payment of the amount so due and payable and
remaining unpaid, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such
payment to the Company, may at the expense of the Company
cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30
days from the date of such mailing, any unclaimed balance
of such money then remaining will be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under
Article Eleven, the Company shall do or cause to be done
all things necessary to preserve and keep in full force
and effect its corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable
effort to cause) all its properties used or useful in the
conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or,
with respect to property owned in common with others,
make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the
Company, may be necessary so that the business carried on
in connection therewith may be properly conducted;
provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any
of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its
business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO
COMPLIANCE.
Not later than June 1 in each year, commencing
June 1, ____, the Company shall deliver to the Trustee an
Officer's Certificate which need not comply with Section
102, executed by the principal executive officer, the
principal financial officer or the principal accounting
officer of the Company, as to such officer's knowledge of
the Company's compliance with all conditions and
covenants under this Indenture, such compliance to be
determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance
to comply with any term, provision or condition set forth
in (a) Section 602 or any additional covenant or
restriction specified with respect to the Securities of
any series, as contemplated by Section 301, if before the
time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding
Securities of all series with respect to which compliance
with Section 602 or such additional covenant or
restriction is to be omitted, considered as one class,
shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance
with such term, provision or condition and (b) Section
604, 605 or Article Eleven if before the time for such
compliance the Holders of at least a majority in
principal amount of Securities Outstanding under this
Indenture shall, by Act of such Holders, either waive
such compliance in such instance or generally waive
compliance with such term, provision or condition; but,
in the case of (a) or (b), no such waiver shall extend to
or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and
effect; provided, however, so long as a Trust holds
Securities of any series, such Trust may not waive
compliance or waive any default in compliance by the
Company with any covenant or other term contained in this
Indenture or the Securities of such series without the
approval of the holders of at least a majority in
aggregate liquidation preference of the outstanding
Preferred Trust Securities issued by such Trust affected,
obtained as provided in the Trust Agreement pertaining to
such Trust.
SECTION 608. RESTRICTION ON PAYMENT OF DIVIDENDS.
So long as any Preferred Trust Securities of
any series remain outstanding, the Company shall not
declare or pay any dividend on, or redeem, purchase,
acquire or make a liquidation payment with respect to,
any of the Company's capital stock, or make any guarantee
payments with respect to the foregoing (other than
payments under the Guarantee relating to such Preferred
Trust Securities) if at such time (a) the Company shall
be in default with respect to its payment or other
obligations under the Guarantee relating to such
Preferred Trust Securities, (b) there shall have occurred
and be continuing a payment default (whether before or
after expiration of any period of grace) or an Event of
Default hereunder or (c) the Company shall have elected
to extend any interest payment period as provided in
Section 311, and any such period, or any extension
thereof, shall be continuing.
SECTION 609. MAINTENANCE OF TRUST EXISTENCE.
So long as Preferred Trust Securities of any
series remain outstanding, the Company shall (i) maintain
direct or indirect ownership of all interests in the
Trust which issued such Preferred Trust Securities, other
than such Preferred Trust Securities, (ii) not
voluntarily (to the extent permitted by law) dissolve,
liquidate or wind up such Trust, except in connection
with a distribution of the Securities to the holders of
the Preferred Trust Securities in liquidation of such
Trust, (iii) remain the sole Depositor under the Trust
Agreement (the "Depositor") of such Trust and timely
perform in all material respects all of its duties as
Depositor of such Trust, and (iv) use reasonable efforts
to cause such Trust to remain a business trust and
otherwise continue to be treated as a grantor trust for
Federal income tax purposes provided that any permitted
successor to the Company under this Indenture may succeed
to the Company's duties as Depositor of such Trust; and
provided further that the Company may permit such Trust
to consolidate or merge with or into another business
trust or other permitted successor under the Trust
Agreement pertaining to such Trust so long as the Company
agrees to comply with this Section 609 with respect to
such successor business trust or other permitted
successor.
SECTION 610. RIGHTS OF HOLDERS OF PREFERRED TRUST
SECURITIES.
The Company agrees that, for so long as any
Preferred Trust Securities remain outstanding, its
obligations under this Indenture will also be for the
benefit of the holders from time to time of Preferred
Trust Securities, and the Company acknowledges and agrees
that such holders will be entitled to enforce this
Indenture, as third party beneficiaries, directly against
the Company to the same extent as if such holders of
Preferred Trust Securities held a principal amount of
Securities equal to the stated liquidation amount of the
Preferred Trust Securities held by such holders.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of
the principal amount thereof, shall be deemed to have
been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged, if
there shall have been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in
trust:
(a) money in an amount which shall be
sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof,
Government Obligations, which shall not contain
provisions permitting the redemption or other
prepayment thereof at the option of the issuer
thereof, the principal of and the interest on which
when due, without any regard to reinvestment
thereof, will provide moneys which, together with
the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient,
or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such
Securities or portions thereof on or prior to Maturity;
provided, however, that in the case of the provision for
payment or redemption of less than all the Securities of
any series, such Securities or portions thereof shall
have been selected by the Trustee as provided herein and,
in the case of a redemption, the notice requisite to the
validity of such redemption shall have been given or
irrevocable authority shall have been given by the
Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee; and provided,
further, that the Company shall have delivered to the
Trustee and such Paying Agent:
(x) if such deposit shall have been made
prior to the Maturity of such Securities, a
Company Order stating that the money and
Government Obligations deposited in accordance
with this Section shall be held in trust, as
provided in Section 703; and
(y) if Government Obligations shall have
been deposited, an Opinion of Counsel that the
obligations so deposited constitute Government
Obligations and do not contain provisions
permitting the redemption or other prepayment
at the option of the issuer thereof, and an
opinion of an independent public accountant of
nationally recognized standing, selected by the
Company, to the effect that the requirements
set forth in clause (b) above have been
satisfied; and
(z) if such deposit shall have been made
prior to the Maturity of such Securities, an
Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of
such Securities or portions thereof will have
been satisfied and discharged as contemplated
in this Section.
Upon the deposit of money or Government Obli-
gations, or both, in accordance with this Section,
together with the documents required by clauses (x), (y)
and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security
or Securities or portions thereof with respect to which
such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire
indebtedness of the Company in respect thereof has been
satisfied and discharged as contemplated in this Section.
In the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect
of any Securities or portions thereof except that, for
any reason, the Officer's Certificate specified in clause
(z) shall not have been delivered, such Securities or
portions thereof shall nevertheless be deemed to have
been paid for all purposes of this Indenture, and the
Holders of such Securities or portions thereof shall
nevertheless be no longer entitled to the benefits of
this Indenture or of any of the covenants of the Company
under Article Six (except the covenants contained in
Sections 602 and 603) or any other covenants made in
respect of such Securities or portions thereof as
contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose, and the Holders
of such Securities or portions thereof shall continue to
be entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company
Request, the Trustee shall acknowledge in writing that
such Securities or portions thereof are deemed to have
been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all
of the Securities of any series is to be provided for in
the manner and with the effect provided in this Section,
the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner
specified by Section 403 for selection for redemption of
less than all the Securities of a series.
In the event that Securities which shall be
deemed to have been paid for purposes of this Indenture,
and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature
and are not to be redeemed within the 60 day period
commencing with the date of the deposit of moneys or
Government Obligations, as aforesaid, the Company shall,
as promptly as practicable, give a notice, in the same
manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the
effect that such deposit has been made and the effect
thereof.
Notwithstanding that any Securities shall be
deemed to have been paid for purposes of this Indenture,
as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602,
603, 907 and 915 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the
Trustee or any Paying Agent with which Government
Obligations shall have been deposited as provided in this
Section against, any tax, fee or other charge imposed on
or assessed against such Government Obligations or the
principal or interest received in respect of such
Government Obligations, including, but not limited to,
any such tax payable by any entity deemed, for tax
purposes, to have been created as a result of such
deposit.
Anything herein to the contrary
notwithstanding, (a) if, at any time after a Security
would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the
Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Government Obligations,
or combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable
Federal or State bankruptcy, insolvency or other similar
law, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect
thereof shall retroactively be deemed not to have been
effected, and such Security shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the
Company's indebtedness in respect of any Security shall
be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease
to be of further effect (except as hereinafter expressly
provided), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding
hereunder; and
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously deemed
to have been paid for purposes of this Indenture, shall
be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to
have been satisfied and discharged, as aforesaid, and to
remain in full force and effect, and the Company shall
execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge
of this Indenture as aforesaid, the obligations of the
Company and the Trustee under Sections 304, 305, 306,
404, 503 (as to notice of redemption), 602, 603, 907 and
915 and this Article Seven shall survive.
Upon satisfaction and discharge of this
Indenture as provided in this Section, the Trustee shall
assign, transfer and turn over to the Company, subject to
the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee
for the benefit of the Holders of the Securities other
than money and Government Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Government Obligations nor the
money deposited pursuant to Section 701, nor the
principal or interest payments on any such Government
Obligations, shall be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment
of the principal of and premium, if any, and interest, if
any, on the Securities or portions of principal amount
thereof in respect of which such deposit was made, all
subject, however, to the provisions of Section 603;
provided, however, that, so long as there shall not have
occurred and be continuing an Event of Default, any cash
received from such principal or interest payments on such
Government Obligations, if not then needed for such pur-
pose, shall, to the extent practicable and upon Company
request, be invested in Government Obligations of the
type described in clause (b) in the first paragraph of
Section 701 maturing at such times and in such amounts as
shall be sufficient, together with any other moneys and
the principal of and interest on any other Government
Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest, if any,
due and to become due on such Securities or portions
thereof on and prior to the Maturity thereof, and inter-
est earned from such reinvestment shall be paid over to
the Company as received, free and clear of any trust,
lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that, so
long as there shall not have occurred and be continuing
an Event of Default, any moneys held in accordance with
this Section on the Maturity of all such Securities in
excess of the amount required to pay the principal of and
premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company free and
clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided,
further, that if an Event of Default shall have occurred
and be continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event
of Default shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with
respect to Securities of any series, means any one of the
following events:
(a) failure to pay interest, if any, including
any Additional Interest, on any Security of such
series within 30 days after the same becomes due and
payable (whether or not payment is prohibited by the
provisions of Article Fifteen hereof); provided,
however, that a valid extension of the interest
payment period by the Company as contemplated in
Section 311 of this Indenture shall not constitute a
failure to pay interest for this purpose; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series at
its Maturity (whether or not payment is prohibited
by the provisions of Article Fifteen hereof); or
(c) failure to perform or breach of any
covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in the performance of which or breach of
which is elsewhere in this Section specifically
dealt with or which has expressly been included in
this Indenture solely for the benefit of one or more
series of Securities other than such series) for a
period of 90 days after there has been given, by
registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the
Holders of at least 33% in principal amount of the
Outstanding Securities of such series, 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, unless
the Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not
less than the principal amount of Securities the
Holders of which gave such notice, as the case may
be, shall agree in writing to an extension of such
period prior to its expiration; provided, however,
that the Trustee, or the Trustee and the Holders of
such principal amount of Securities of such series,
as the case may be, shall be deemed to have agreed
to an extension of such period if corrective action
is initiated by the Company within such period and
is being diligently pursued; or
(d) the entry by a court having jurisdiction
in the premises of (1) a decree or order for relief
in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law or (2) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons
other than the Company seeking reorganization,
arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any
such decree or order for relief or any such other
decree or order shall have remained unstayed and in
effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a
voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company
in a case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by
it to the filing of such petition or to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company 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, or the authorization of such action by the
Board of Directors; or
(f) any other Event of Default specified with
respect to Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default due to the default in
payment of principal of, or interest on, any series of
Securities or due to the default in the performance or
breach of any other covenant or warranty of the Company
applicable to the Securities of such series but not
applicable to all Outstanding Securities shall have
occurred and be continuing, either the Trustee or the
Holders of not less than 33% in principal amount of the
Securities of such series may then declare the principal
of all Securities of such series and interest accrued
thereon to be due and payable immediately (provided that
the payment of principal and interest on such Securities
shall remain subordinated to the extent provided in
Article Fifteen hereof). If an Event of Default due to
default in the performance of any other of the covenants
or agreements herein applicable to all Outstanding
Securities or an Event of Default specified in Section
801(d) or (e) shall have occurred and be continuing,
either the Trustee or the Holders of not less than 33% in
principal amount of all Securities then Outstanding
(considered as one class), and not the Holders of the
Securities of any one of such series, may declare the
principal of all Securities and interest accrued thereon
to be due and payable immediately (provided that the
payment of principal and interest on such Securities
shall remain subordinated to the extent provided in the
Indenture). As a consequence of each such declaration
(herein referred to as a declaration of acceleration)
with respect to Securities of any series, the principal
amount of such Securities and interest accrued thereon
shall become due and payable immediately.
At any time after such a declaration of
acceleration with respect to Securities of any series
shall have been made and before a judgment or decree for
payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the
Event or Events of Default giving rise to such
declaration of acceleration shall, without further act,
be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(a) the Company shall have paid or deposited
with the Trustee a sum sufficient to pay
(1) all overdue interest on all
Securities of such series;
(2) the principal of and premium, if any,
on any Securities of such series which have be-
come due otherwise than by such declaration of
acceleration and interest thereon at the rate
or rates prescribed therefor in such
Securities;
(3) to the extent that payment of such
interest is lawful, interest upon overdue
interest, if any, at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the Trustee under
Section 907;
and
(b) any other Event or Events of Default with
respect to Securities of such series, other than the
nonpayment of the principal of Securities of such
series which shall have become due solely by such
declaration of acceleration, shall have been cured
or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a)
or (b) of Section 801 shall have occurred and be con-
tinuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securi-
ties of the series with respect to which such Event of
Default shall have occurred, the whole amount then due
and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent per-
mitted by law, interest on premium, if any, and on any
overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most ef-
fectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the
payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole
amount of principal, premium, if any, and interest,
if any, owing and unpaid in respect of the
Securities and to file such other papers or
documents as may be necessary or advisable in order
to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section
907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims
and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the
Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of
the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders in respect of which
such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Subject to the provisions of Article Fifteen,
any money collected by the Trustee pursuant to this Arti-
cle shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the benefit
of which such money shall have been collected and the
notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee under Section 907;
SECOND: To the payment of the amounts then due
and unpaid upon the Securities for principal of and
premium, if any, and interest, if any, in respect of
which or for the benefit of which such money has
been collected, ratably, without preference or
priority of any kind, according to the amounts due
and payable on such Securities for principal,
premium, if any, and interest, if any, respectively;
and
THIRD: To the payment of the remainder, if
any, to the Company or to whomsoever may be lawfully
entitled to receive the same or as a court of
competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given
written notice to the Trustee of a continuing Event
of Default with respect to the Securities of such
series;
(b) the Holders of a majority in aggregate
principal amount of the Outstanding Securities of
all series in respect of which an Event of Default
shall have occurred and be continuing, considered as
one class, shall have made written request to the
Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have offered
to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity shall
have failed to institute any such proceeding; and
(e) no direction inconsistent with such
written request shall have been given to the Trustee
during such 60-day period by the Holders of a
majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and be
continuing, considered as one class;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and
(subject to Section 307 and 311) interest, if any, on
such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemp-
tion, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have
been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any
determination in such proceeding, the Company, and
Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding
had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last
paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and
be continuing in respect of a series of Securities, the
Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series;
provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one
series of Securities, the Holders of a majority in
aggregate principal amount of the Outstanding Securities
of all such series, considered as one class, shall have
the right to make such direction, and not the Holders of
the Securities of any one of such series; and provided,
further, that such direction shall not be in conflict
with any rule of law or with this Indenture. The Trustee
may take any other action, deemed proper by the Trustee,
which is not inconsistent with any such direction.
Before proceeding to exercise any right or power
hereunder at the direction of such Holders, the Trustee
shall be entitled to receive from such Holders reasonable
security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance
with any such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities
of such series waive any past default hereunder with
respect to such series and its consequences, except a
default
(a) in the payment of the principal of or
premium, if any, or interest, if any, on any
Security of such series, or
(b) in respect of a covenant or provision
hereof which under Section 1202 cannot be modified
or amended without the consent of the Holder of each
Outstanding Security of such series affected;
provided, however, that so long as a Trust holds the
Securities of any series, such Trust may not waive any
past default without the consent of at least a majority
in aggregate liquidation preference of the outstanding
Preferred Trust Securities issued by such Trust affected,
obtained as provided in the Trust Agreement pertaining to
such Trust.
Upon any such waiver, such default shall cease
to exist, and any and all Events of Default arising
therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each
Holder by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any
suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate
more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to
any suit instituted by any Holder for the enforcement of
the payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had
been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to
all the duties and responsibilities specified with
respect to an indenture trustee in the Trust
Indenture Act and no implied covenants or
obligations shall be read into this Indenture
against the Trustee. For purposes of Sections
315(a) and 315(c) of the Trust Indenture Act, the
term "default" is hereby defined as an Event of
Default which has occurred and is continuing.
(b) No provision of this Indenture shall
require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity
against such risk or liability is not reasonably
assured to it.
(c) Notwithstanding anything contained in this
Indenture to the contrary, the duties and
responsibilities of the Trustee under this Indenture
shall be subject to the protections, exculpations
and limitations on liability afforded to the Trustee
under the provisions of the Trust Indenture Act.
(d) Whether or not therein expressly so
provided, every provision of this Indenture relating
to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series to
the Holders of Securities of such series in the manner
and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured
or waived; provided, however, that in the case of any
default of the character specified in Section 801(c), no
such notice to Holders shall be given until at least 45
days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which
is, or after notice or lapse of time, or both, would
become, an Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to
the applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting in
good faith upon any resolution, certificate,
statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper
or document reasonably believed by it to be genuine
and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by
a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel 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;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any
Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses
and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal
business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through agents or
attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be charged with
knowledge of any default or Event of Default, as the
case may be, with respect to the Securities of any
series for which it is acting as Trustee unless
either (1) a Responsible Officer of the Trustee
shall have actual knowledge of the default or Event
of Default, as the case may be, or (2) written
notice of such default or Event of Default, as the
case may be, shall have been given to the Trustee by
the Company, any other obligor on such Securities or
by any Holder of such Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities
and, subject to Sections 908 and 913, may otherwise deal
with the Company with the same rights it would have if it
were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder
need not be segregated from other funds, except to the
extent required by law. The Trustee shall be under no
liability for interest on any money received by it
hereunder except as expressly provided herein or
otherwise agreed with, and for the sole benefit of, the
Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered by
it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the reasonable compensation and the
expenses and disbursements of its agents and
counsel), except to the extent that any such
expense, disbursement or advance may be attributable
to the Trustee's negligence, wilful misconduct or
bad faith; and
(c) indemnify the Trustee for, and hold it
harmless from and against, any loss, liability or
expense reasonably incurred by it arising out of or
in connection with the acceptance or administration
of the trust or trusts hereunder or the performance
of its duties hereunder, including the reasonable
costs and expenses of defending itself against any
claim or liability in connection with the exercise
or performance of any of its powers or duties
hereunder, except to the extent any such loss,
liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust under
Section 703 (except as otherwise provided in Section
703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that
the negligence, wilful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any
other Trustee hereunder.
When the Trustee incurs expenses or renders
services in connection with an Event of Default specified
in Section 801(d) or Section 801(e), the expenses
(including the reasonable charges and expenses of its
counsel) and the compensation for the services are
intended to constitute expenses of administration under
any applicable Federal or State bankruptcy, insolvency or
other similar law.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in
the Trust Indenture Act and this Indenture. For purposes
of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect
of the Securities of any other series. The Trust
Agreement and the Guarantee Agreement pertaining to each
Trust shall be deemed to be specifically described in
this Indenture for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust
Indenture Act.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder
which shall be
(a) a corporation organized and doing business
under the laws of the United States, any State or
Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or
examination by Federal or State authority, or
(b) if and to the extent permitted by the
Commission by rule, regulation or order upon
application, a corporation or other Person organized
and doing business under the laws of a foreign
government, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and
subject to supervision or examination by authority of
such foreign government or a political subdivision
thereof substantially equivalent to supervision or
examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or
examining authority, then for the purposes of this
Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condi-
tion so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to
this Article shall become effective until the
acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of
Section 911.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by
giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee
required by Section 911 shall not have been delivered
to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to
the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to
the Trustee and to the Company; provided that so long
as any Preferred Trust Securities remain outstanding,
the Trust which issued such Preferred Trust
Securities shall not execute any Act to remove the
Trustee without the consent of the holders of a
majority in aggregate liquidation preference of
Preferred Trust Securities issued by such Trust
outstanding, obtained as provided in the Trust
Agreement pertaining to such Trust.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 908 after written request therefor by
the Company or by any Holder who has been a
bona fide Holder for at least six months, or
(2) the Trustee shall cease to be
eligible under Section 909 and shall fail to
resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of
its property shall be appointed or any public
officer shall take charge or control of the
Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who
has been a bona fide Holder for at least six months may,
on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause (other
than as contemplated in clause (y) in subsection (d)
of this Section), with respect to the Securities of
one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any
such successor Trustee may be appointed with respect
to the Securities of one or more or all of such
series and that at any time there shall be only one
Trustee with respect to the Securities of any
particular series) and shall comply with the
applicable requirements of Section 911. If, within
one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 911, become the successor
Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall
have been so appointed by the Company or the Holders
and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least six
months may, on behalf of itself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after
notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be
continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the
Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee,
effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee
in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant
to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and
all other provisions of this Section and Section 911
shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company (or, should the Company fail so
to act promptly, the successor trustee at the expense
of the Company) shall give notice of each resignation
and each removal of the Trustee with respect to the
Securities of any series and each appointment of a
successor Trustee with respect to the Securities of
any series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and
addresses appear in the Security Register. Each
notice shall include the name of the successor
Trustee with respect to the Securities of such series
and the address of its corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become
effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee
shall, upon payment of all sums owed to it, execute
and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor 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 Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the
extent provided therein and each such successor
Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates; but, on request of the Company or any
successor Trustee, such retiring Trustee, upon
payment of all sums owed to it, shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder with respect to the Securities of that or
those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any instruments which fully
vest in and confirm to such successor Trustee all
such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance
such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of
any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
If the Trustee shall be or become a creditor of
the Company or any other obligor upon the Securities
(other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee
shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of
claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any
transaction in which full payment for goods or
securities sold is made within seven days after
delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means
any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise
previously constituting the security, provided the
security is received by the Trustee simultaneously
with the creation of the creditor relationship with
the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of
meeting the legal requirements of any applicable
jurisdiction, the Company and the Trustee shall have
power to appoint, and, upon the written request of the
Trustee or of the Holders of at least 33% in principal
amount of the Securities then Outstanding, the Company
shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons
approved by the Trustee either to act as co-trustee,
jointly with the Trustee, or to act as separate trustee,
in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Company
does not join in such appointment within 15 days after
the receipt by it of a request so to do, or if an Event
of Default shall have occurred and be continuing, the
Trustee alone shall have power to make such appointment.
Should any written instrument or instruments
from the Company be required by any co-trustee or
separate trustee so appointed to more fully confirm to
such co-trustee or separate trustee such property, title,
right or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the
Company.
Every co-trustee or separate trustee shall, to
the extent permitted by law, but to such extent only, be
appointed subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of
securities, cash and other personal property held
by, or required to be deposited or pledged with, the
Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and obligations
hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the 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 Trustee shall
be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and
obligations shall be exercised and performed by such
co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument
in writing executed by it, with the concurrence of
the Company, may accept the resignation of or remove
any co-trustee or separate trustee appointed under
this Section, and, if an Event of Default shall have
occurred and be continuing, the Trustee shall have
power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the
concurrence of the Company. Upon the written
request of the Trustee, the Company shall join with
the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in
this Section;
(d) no co-trustee or separate trustee
hereunder shall be personally liable by reason of
any act or omission of the Trustee, or any other
such trustee hereunder; and
(e) any Act of Holders delivered to the
Trustee shall be deemed to have been delivered to
each such co-trustee and separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent
or Agents with respect to the Securities of one or more
series, which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued
upon original issuance and upon exchange, registration of
transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation
organized and doing business under the laws of the United
States, any State or territory thereof or the District of
Columbia, authorized under such laws to act as Authenti-
cating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus
of such Authenticating Agent 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
an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authen-
ticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, in accordance
with, and subject to the provisions of, Section 907.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the Securities
of one or more series shall be made pursuant to this
Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
Dated:
________________________
As Trustee
By_____________________
As Authenticating
Agent
By_____________________
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than June 1 and December
1 in each year, commencing June 1, ____, and at such other
times as the Trustee may request in writing, the Company
shall furnish or cause to be furnished to the Trustee
information as to the names and addresses of the Holders,
and the Trustee shall preserve such information and
similar information received by it in any other capacity
and afford to the Holders access to information so
preserved by it, all to such extent, if any, and in such
manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so
long as the Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than November 1 in each year,
commencing November 1, ____, the Trustee shall transmit to
the Holders and the Commission a report, dated as of the
next preceding September 15, with respect to any events
and other matters described in Section 313(a) of the Trust
Indenture Act, in such manner and to the extent required
by the Trust Indenture Act. The Trustee shall transmit to
the Holders and the Commission and each securities
exchange upon which any Securities are listed, and the
Company shall file with the Trustee (within 30 days after
filing with the Commission in the case of reports which
pursuant to the Trust Indenture Act must be filed with the
Commission and furnished to the Trustee) and transmit to
the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as
shall be required by the Trust Indenture Act. The Company
shall notify the Trustee of the listing of any Securities
on any securities exchange.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
The Company shall not consolidate with or merge
into any other Person, or convey or otherwise transfer or
lease its properties and assets substantially as an
entirety to any Person, unless
(a) the Person formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substan-
tially as an entirety shall be a Person organized and
validly existing under the laws of the United States,
any State thereof or the District of Columbia, and
shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and
punctual payment of the principal of and premium, if
any, and interest, if any, on all Outstanding
Securities and the performance of every covenant of
this Indenture on the part of the Company to be per-
formed or observed;
(b) immediately after giving effect to such
transaction no Event of Default, and no event which,
after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation,
merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this Article
and that all conditions precedent herein provided for
relating to such transactions have been complied
with.
SECTION 1102. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation by the Company with or
merger by the Company into any other Person or any
conveyance, or other transfer or lease of the properties
and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor Person formed
by such consolidation or into which the Company is merged
or the Person to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under
this Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another
Person to the Company and the assumption by any such
successor of the covenants of the Company herein and
in the Securities, all as provided in Article Eleven;
or
(b) to add one or more covenants of the Company
or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in
effect only so long as there shall be Outstanding,
Securities of one or more specified series, or to
surrender any right or power herein conferred upon
the Company; or
(c) to add any additional Events of Default
with respect to all or any series of Securities
Outstanding hereunder; or
(d) to change or eliminate any provision of
this Indenture or to add any new provision to this
Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the
interests of the Holders of Securities of any series
Outstanding on the date of such indenture
supplemental hereto in any material respect, such
change, elimination or addition shall become
effective with respect to such series only pursuant
to the provisions of Section 1202 hereof or when no
Security of such series remains Outstanding; or
(e) to provide collateral security for all but
not part of the Securities; or
(f) to establish the form or terms of
Securities of any series as contemplated by Sections
201 and 301; or
(g) to provide for the authentication and
delivery of bearer securities and coupons
appertaining thereto representing interest, if any,
thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all
other matters incidental thereto; or
(h) to evidence and provide for the acceptance
of appointment hereunder by a separate or successor
Trustee or co-trustee with respect to the Securities
of one or more series and to add to or change any of
the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section
911(b); or
(i) to provide for the procedures required to
permit the Company to utilize, at its option, a
noncertificated system of registration for all, or
any series of, the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if
any, on all or any series of Securities shall be
payable, (2) all or any series of Securities may be
surrendered for registration of transfer, (3) all or
any series of Securities may be surrendered for
exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities
and this Indenture may be served; or
(k) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other provision
herein, or to make any other changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions shall not adversely affect the interests of
the Holders of Securities of any series in any
material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act as in effect at the
date of the execution and delivery of this Indenture or at
any time thereafter shall be amended and
(x) if any such amendment shall require
one or more changes to any provisions hereof or
the inclusion herein of any additional
provisions, or shall by operation of law be
deemed to effect such changes or incorporate
such provisions by reference or otherwise, this
Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee
may, without the consent of any Holders, enter
into an indenture supplemental hereto to effect
or evidence such changes or additional
provisions; or
(y) if any such amendment shall permit one
or more changes to, or the elimination of, any
provisions hereof which, at the date of the
execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture
Act to be contained herein, this Indenture shall
be deemed to have been amended to effect such
changes or elimination, and the Company and the
Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to
evidence such amendment hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
With the consent of the Holders of a majority in
aggregate principal amount of the Securities of all series
then Outstanding under this Indenture, considered as one
class, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or
modifying in any manner the rights of the Holders of
Securities of such series under the Indenture; provided,
however, that if there shall be Securities of more than
one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights of
the Holders of Securities of one or more, but less than
all, of such series, then the consent only of the Holders
of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided,
further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal
of, or any installment of principal of or interest on
(except as provided in Section 311 hereof), any
Security, or reduce the principal amount thereof or
the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method
of calculating such rate or reduce any premium
payable upon the redemption thereof, or change the
coin or currency (or other property), in which any
Security or any premium or the interest thereon is
payable, or impair the right to institute suit for
the enforcement of any such payment on or after the
Stated Maturity of any Security (or, in the case of
redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder
of such Security, or
(b) reduce the percentage in principal amount
of the Outstanding Securities of any series (or, if
applicable, in liquidation preference of any series
of Preferred Trust Securities), the consent of the
Holders of which is required for any such
supplemental indenture, or the consent of the Holders
of which is required for any waiver of compliance
with any provision of this Indenture or of any
default hereunder and its consequences, or reduce the
requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the Holders
of each Outstanding Security of such series, or
(c) modify any of the provisions of this
Section, Section 607 or Section 813 with respect to
the Securities of any series, except to increase the
percentages in principal amount referred to in this
Section or such other Sections or to provide that
other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, how-
ever, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this pro-
viso, in accordance with the requirements of Sections
911(b), 914 and 1201(h).
Notwithstanding the foregoing, so long as any of the
Preferred Trust Securities remain outstanding, the Trustee
may not consent to a supplemental indenture under this
Section 1202 without the prior consent, obtained as
provided in a Trust Agreement pertaining to a Trust which
issued such Preferred Trust Securities, of the holders of
not less than a majority in aggregate liquidation
preference of all Preferred Trust Securities issued by
such Trust affected, considered as one class, or, in the
case of changes described in clauses (a), (b) and (c)
above, 100% in aggregate liquidation preference of all
such Preferred Trust Securities then outstanding which
would be affected thereby, considered as one class. A
supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series
with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof. A waiver by a Holder of such Holder's right to
consent under this Section shall be deemed to be a consent
of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 901) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound
thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore
in effect for all purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series authenticated and
delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such
series.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL
INDENTURE.
If the terms of any particular series of
Securities shall have been established in a Board
Resolution or an Officer's Certificate as contemplated by
Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such
terms may be effected by means of a supplemental Board
Resolution or Officer's Certificate, as the case may be,
delivered to, and accepted by, the Trustee; provided,
however, that such supplemental Board Resolution or
Officer's Certificate shall not be accepted by the Trustee
or otherwise be effective unless all conditions set forth
in this Indenture which would be required to be satisfied
if such additions, changes or elimination were contained
in a supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee,
any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental
indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or
more, or all, series may be called at any time and from
time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting
of Holders of Securities of one or more, or all,
series for any purpose specified in Section 1301, to
be held at such time and at such place in the Borough
of Manhattan, The City of New York, as the Trustee
shall determine, or, with the approval of the
Company, at any other place. Notice of every such
meeting, setting forth the time and the place of such
meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the
meeting.
(b) If the Trustee shall have been requested to
call a meeting of the Holders of Securities of one or
more, or all, series by the Company or by the Holders
of 33% in aggregate principal amount of all of such
series, considered as one class, for any purpose
specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after
receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities
of such series in the amount above specified, as the
case may be, may determine the time and the place in
the Borough of Manhattan, The City of New York, or in
such other place as shall be determined or approved
by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one
or more, or all, series shall be valid without notice
if the Holders of all Outstanding Securities of such
series are present in person or by proxy and if rep-
resentatives of the Company and the Trustee are
present, or if notice is waived in writing before or
after the meeting by the Holders of all Outstanding
Securities of such series, or by such of them as are
not present at the meeting in person or by proxy, and
by the Company and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders
of Securities of one or more, or all, series a Person
shall be (a) a Holder of one or more Outstanding
Securities of such series, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled
to attend any meeting of Holders of Securities of any
series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities
of the series with respect to which a meeting shall have
been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders
of Securities of such series; provided, however, that if
any action is to be taken at such meeting which this
Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority,
in principal amount of the Outstanding Securities of such
series, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the
Outstanding Securities of such series, considered as one
class, shall constitute a quorum. In the absence of a
quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In
any other case the meeting may be adjourned for such
period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for such period as may be
determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided
by Section 1305(e), notice of the reconvening of any
meeting adjourned for more than 30 days shall be given as
provided in Section 1302(a) not less than 10 days prior to
the date on which the meeting is scheduled to be recon-
vened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of
such series which shall constitute a quorum.
Except as limited by Section 1202, any
resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders
of a majority in aggregate principal amount of the
Outstanding Securities of the series with respect to which
such meeting shall have been called, considered as one
class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture
expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such
series, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative
vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such
series, considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of
Securities of the series with respect to which such
meeting shall have been held, whether or not present or
represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF
VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Attendance at meetings of Holders of
Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain
in effect and be binding upon any future Holder of
the Securities with respect to which it was given
unless and until specifically revoked by the Holder
or future Holder of such Securities before being
voted.
(b) Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting
of Holders of Securities in regard to proof of the
holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties
of inspectors of votes, the submission and
examination of proxies, certificates and other
evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of
Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104. Such
regulations may provide that written instruments
appointing proxies, regular on their face, may be
presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b),
in which case the Company or the Holders of
Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all
series represented at the meeting, considered as one
class.
(d) At any meeting each Holder or proxy shall
be entitled to one vote for each $1 principal amount
of Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section
1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series represented at
the meeting, considered as one class; and the meeting
may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF
MEETINGS.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which
shall be subscribed the signatures of the Holders or of
their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the
series with respect to which the meeting shall have been
called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with
the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared
by the secretary of the meeting and there shall be
attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided
in Section 1302 and, if applicable, Section 1304. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request,
demand, authorization, direction, notice, consent, waiver
or other action may be made, given or taken by Holders by
written instruments as provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS OFFICERS
AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on
any Securities, or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under this Indenture, against any
incorporator, shareholder, officer or director, as such,
past, present or future of the Company or of any
predecessor or successor corporation (either directly or
through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional pro-
vision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be
incurred by, any incorporator, shareholder, officer or
director, past, present or future, of the Company or of
any predecessor or successor corporation, either directly
or indirectly through the Company or any predecessor or
successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATE TO SENIOR
INDEBTEDNESS.
The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the
Securities of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on
each and all of the Securities is hereby expressly
subordinated and subject to the extent and in the manner
set forth in this Article, in right of payment to the
prior payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by
its acceptance thereof, authorizes and directs the Trustee
on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in
this Article, and appoints the Trustee its attorney-in-
fact for any and all such purposes.
SECTION 1502. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation,
reorganization or other similar proceedings in respect of
the Company or a substantial part of its property, or of
any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving
insolvency or bankruptcy, or (b) subject to the provisions
of Section 1503, that (i) a default shall have occurred
with respect to the payment of principal of or interest on
or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default
(other than a default in the payment of principal or
interest or other monetary amounts due and payable) in
respect of any Senior Indebtedness, as defined therein or
in the instrument under which the same is outstanding,
permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both),
and such default shall have continued beyond the period of
grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default
shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of and accrued
interest on the Securities of any series shall have been
declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as
provided in Section 802, then:
(1) the holders of all Senior
Indebtedness shall first be entitled to
receive payment of the full amount due
thereon, or provision shall be made for
such payment in money or money's worth,
before the Holders of any of the Securities
are entitled to receive a payment on
account of the principal of or interest on
the indebtedness evidenced by the
Securities, including, without limitation,
any payments made pursuant to Articles Four
and Five;
(2) any payment by, or distribution of
assets of, the Company of any kind or
character, whether in cash, property or
securities, to which any Holder or the
Trustee would be entitled except for the
provisions of this Article, shall be paid
or delivered by the person making such
payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the
holders of such Senior Indebtedness or
their representative or representatives or
to the trustee or trustees under any
indenture under which any instruments
evidencing any of such Senior Indebtedness
may have been issued, ratably according to
the aggregate amounts remaining unpaid on
account of such Senior Indebtedness held or
represented by each, to the extent
necessary to make payment in full of all
Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before
any payment or distribution is made to the
Holders of the indebtedness evidenced by
the Securities or to the Trustee under this
Indenture; and
(3) in the event that, notwithstanding
the foregoing, any payment by, or
distribution of assets of, the Company of
any kind or character, whether in cash,
property or securities, in respect of
principal of or interest on the Securities
or in connection with any repurchase by the
Company of the Securities, shall be
received by the Trustee or any Holder
before all Senior Indebtedness is paid in
full, or provision is made for such payment
in money or money's worth, such payment or
distribution in respect of principal of or
interest on the Securities or in connection
with any repurchase by the Company of the
Securities shall be paid over to the
holders of such Senior Indebtedness or
their representative or representatives or
to the trustee or trustees under any
indenture under which any instruments
evidencing any such Senior Indebtedness may
have been issued, ratably as aforesaid, for
application to the payment of all Senior
Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been
paid in full, after giving effect to any
concurrent payment or distribution (or
provision therefor) to the holders of such
Senior Indebtedness.
Notwithstanding the foregoing, at any time after
the 123rd day following the date of deposit of cash or
Government Obligations pursuant to Section 701 (provided
all conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest
thereon will not be subject to any rights of holders of
Senior Indebtedness including, without limitation, those
arising under this Article Fifteen; provided that no event
described in clauses (d) and (e) of Section 801 with
respect to the Company has occurred during such 123-day
period.
For purposes of this Article only, the words
"cash, property or securities" shall not be deemed to
include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or
readjustment which are subordinate in right of payment to
all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in
this Article. The consolidation of the Company with, or
the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article Eleven
hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this
Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eleven hereof.
Nothing in Section 1501 or in this Section 1502 shall
apply to claims of, or payments to, the Trustee under or
pursuant to Section 907.
SECTION 1503. DISPUTES WITH HOLDERS OF CERTAIN SENIOR
INDEBTEDNESS.
Any failure by the Company to make any payment
on or perform any other obligation in respect of Senior
Indebtedness, other than any indebtedness incurred by the
Company or assumed or guaranteed, directly or indirectly,
by the Company for money borrowed (or any deferral,
renewal, extension or refunding thereof) or any other
obligation as to which the provisions of this Section
shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default under clause (b)
of Section 1502 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation
and (ii) either (A) no final judgment relating to such
dispute shall have been issued against the Company which
is in full force and effect and is not subject to further
review, including a judgment that has become final by
reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event
that a judgment that is subject to further review or
appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such
appeal or review.
SECTION 1504. SUBROGATION.
Senior Indebtedness shall not be deemed to have
been paid in full unless the holders thereof shall have
received cash (or securities or other property
satisfactory to such holders) in full payment of such
Senior Indebtedness then outstanding. Subject to the
prior payment in full of all Senior Indebtedness, the
rights of the Holders of the Securities shall be
subrogated to the rights of the holders of Senior
Indebtedness to receive any further payments or
distributions of cash, property or securities of the
Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Securities
shall be paid in full; and such payments or distributions
of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which
otherwise would be paid or distributed to the holders of
such Senior Indebtedness shall, as between the Company,
its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment
by the Company to or on account of Senior Indebtedness, it
being understood that the provisions of this Article are
and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1505. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere
in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other
than the holders of Senior Indebtedness and the Holders,
the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and
interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein
or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of
any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in
which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of
ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this
Article.
SECTION 1506. PRIORITY OF SENIOR INDEBTEDNESS UPON
MATURITY.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise,
all matured principal of Senior Indebtedness and interest
and premium, if any, thereon shall first be paid in full
before any payment of principal or premium, if any, or
interest, if any, is made upon the Securities or before
any Securities can be acquired by the Company or any
sinking fund payment is made with respect to the
Securities (except that required sinking fund payments may
be reduced by Securities acquired before such maturity of
such Senior Indebtedness).
SECTION 1507. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all rights set
forth in this Article with respect to any Senior
Indebtedness at any time held by it, to the same extent as
any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as
such holder.
SECTION 1508. NOTICE TO TRUSTEE TO EFFECTUATE
SUBORDINATION.
Notwithstanding the provisions of this Article
or any other provision of the Indenture, the Trustee shall
not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the Trustee
shall have received written notice thereof from the
Company, from a Holder or from a holder of any Senior
Indebtedness or from any representative or representatives
of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to
Section 901, in all respects to assume that no such facts
exist; provided, however, that, if prior to the fifth
Business Day preceding the date upon which by the terms
hereof any such moneys may become payable for any purpose,
or in the event of the execution of an instrument pursuant
to Section 702 acknowledging satisfaction and discharge of
this Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the notice
provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply
the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary, which
may be received by it on or after such date; provided,
however, that no such application shall affect the
obligations under this Article of the persons receiving
such moneys from the Trustee.
SECTION 1509. MODIFICATION, EXTENSION, ETC. OF SENIOR
INDEBTEDNESS.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the payment
of the principal of and premium, if any, and interest, if
any, on the Securities, at any time or from time to time
and in their absolute discretion, agree with the Company
to change the manner, place or terms of payment, change or
extend the time of payment of, or renew or alter, any
Senior Indebtedness, or amend or supplement any instrument
pursuant to which any Senior Indebtedness is issued, or
exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder, all without
notice to or assent from the Holders or the Trustee.
SECTION 1510. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF
SENIOR INDEBTEDNESS.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and objectives as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or deliver to the Holders
or the Company or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled
by virtue of this Article or otherwise.
SECTION 1511. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in
this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully
for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the
Trustee; provided, however, that Sections 1507, 1508 and
1510 shall not apply to the Company if it acts as Paying
Agent.
SECTION 1512. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS
NOT IMPAIRED.
No right of any present or future holder of
Senior Indebtedness to enforce the subordination herein
shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or
by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of
any knowledge thereof any such holder may have or be
otherwise charged with.
SECTION 1513. EFFECT OF SUBORDINATION PROVISIONS;
TERMINATION.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately
succeeding sentence, all the provisions of this Indenture
shall be subject to the provisions of this Article, so far
as the same may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be
of no further effect, and the Securities shall no longer
be subordinated in right of payment to the prior payment
of Senior Indebtedness, if the Company shall have
delivered to the Trustee a notice to such effect. Any
such notice delivered by the Company shall not be deemed
to be a supplemental indenture for purposes of Article
Twelve.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, all as of the
day and year first above written.
ENSERCH CORPORATION
By:______________________________
<PAGE>
THE BANK OF NEW YORK, Trustee
By:______________________________
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of ________, ____, before me
personally came __________, to me known, who, being by me
duly sworn, did depose and say that [he] is the
___________ of ENSERCH Corporation, one of the
corporations described in and which executed the foregoing
instrument; that [he] knows the seal of said corporation;
that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that [he] signed [his]
name thereto by like authority.
______________________
Notary Public, State of
New York
No.
Qualified in _________
County
Commission Expires
______, 199_
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ________, ____ before me
personally came __________, to me known, who, being by me
duly sworn, did depose and say that [he] is [a] _________
of The Bank of New York, one of the corporations described
in and which executed the foregoing instrument; that [he]
knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said
corporation, and that [he] signed his name thereto by like
authority.
____________________________
Notary Public, State of
New York
No. _________________
Qualified in _______ County
Commission Expires
___________, 199_
Exhibit 4(h)
ENSERCH CORPORATION
OFFICER'S CERTIFICATE
, the of ENSERCH
--------------------- -----------
Corporation (the "Company"), pursuant to the authority granted
in the Board Resolutions of the Company dated ,
----------- ----
and Sections 201 and 301 of the Indenture defined herein, does
hereby certify to The Bank of New York (the "Trustee"), as
Trustee under the Indenture of the Company (For Unsecured
Subordinated Debt Securities relating to Trust Securities) dated
as of , (as amended and supplemented to date, the
--------- ----
"Indenture") that:
1. The securities of the series to be issued
----------
under the Indenture shall be designated " % Junior
-----
Subordinated Debentures, Series ", (the "Debentures of
-
the Series"). The Debentures of the
----------
Series are to be issued to ENSERCH Capital
----------
I, a Delaware statutory business trust (the "Trust").
All capitalized terms used in this certificate which
are not defined herein but are defined in the Indenture
shall have the meanings set forth in the Indenture;
2. The Debentures of the Series shall be
----------
limited in aggregate principal amount to $
------------
at any time Outstanding, except as contemplated in
Section 301(b) of the Indenture [and shall be issued in
the denominations of $ each and in integral
------
multiples thereof];
3. The Debentures of the Series shall mature
----------
and the principal shall be due and payable together
with all accrued and unpaid interest thereon on
, ;
------- -----
4. The Debentures of the Series shall bear
----------
interest from, and including, the date of original
issuance, at the rate of % per annum payable
-----
in arrears on and of each
---------- -------- ------
year (each, an "Interest Payment Date") commencing
, . The amount of interest payable for
----------- ----
any such period will be computed on the basis of a 360-
day year of twelve 30-day months and, for any period
shorter than a full month, on the basis of the actual
number of days elapsed. Interest on the Debentures of
the Series will accrue from, and including,
----------
the date of original issuance. In the event that any
Interest Payment Date is not a Business Day, then
payment of interest payable on such date will be made
on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of
such delay), in each case with the same force and
effect as if made on such Interest Payment Date;
5. Each installment of interest on a Debenture of the
Series shall be payable to the Person in
----------
whose name such Debenture of the Series is
----------
registered in the Securities Register at the close of
business on the day, so long as either the securities
of the Trust (the "Preferred Trust Securities") or the
Debentures of the Series remain in book-
----------
entry form, one Business Day, and otherwise 15 days
preceding the corresponding Interest Payment Date (the
"Regular Record Date") for the Debentures of the
Series; provided, however, that if the
----------
Debentures of the Series are held neither by
----------
the Trust nor by a securities depositary, the Company
shall have the right to change the Regular Record Date
by one or more Officer's Certificates. Any installment
of interest on the Debentures of the Series
----------
not punctually paid or duly provided for shall
forthwith cease to be payable to the Holders of such
Debentures of the Series on such Regular
----------
Record Date, and may be paid to the Persons in whose
name the Debentures of the Series are
----------
registered in the Securities Register at the close of
business on a Special Record Date to be fixed by the
Trustee for the payment of such Defaulted Interest.
Notice of such Defaulted Interest and Special Record
Date shall be given to the Holders of the Debentures of
the Series not less than 10 days prior to
----------
such Special Record Date, all as more fully provided in
the Indenture;
6. The principal and each installment of interest on the
Debentures of the Series shall be payable
---------
at, and registration and registration of transfers and
exchanges in respect of the Debentures of the
Series may be effected at, the office or
----------
agency of the Company in The City of New York; provided
that payment of interest may be made at the option of
the Company by check mailed to the address of the
persons entitled thereto as such addresses appear in
the Securities Register. Notices, demands to or upon
the Company in respect of the Debentures of the
Series may be served at such office or
----------
agency of the Company in The City of New York. The
Corporate Trust Office of the Trustee will initially be
the agency of the Company for such payment,
registration and registration of transfers and
exchanges and services of notices and demands and the
Company hereby appoints the Trustee as its agent for
all such purposes; provided, however, that the Company
reserves the right to change, by one or more Officer's
Certificates, any such office or agency and such agent.
The Trustee will be the Security Registrar and the
Paying Agent for the Debentures of the
----------
Series;
7. [The Debentures of the Series will be
----------
redeemable on or after , , at the option
---------- ----
of the Company, at any time and from time to time in
whole or in part, upon not less than 30 nor more than
60 days' notice given as provided in the Indenture, at
a Redemption Price equal to the following prices,
expressed in percentages of the principal amount,
together with accrued interest to but excluding the
Redemption Date. If redeemed during the 12-month
period beginning :
----------
Redemption
Year Price
---- ----------------
and at 100% on or after .
---------
If a Tax Event shall occur and be continuing and either
(i) in the opinion of counsel to the Company
experienced in such matters, there would in all cases,
after effecting the termination of the Trust and the
distribution of the Debentures of the Series
----------
to the holders of the Securities in exchange
-------
therefor, be more than an insubstantial risk that an
Adverse Tax Consequence (as defined below) would
continue to exist or (ii) the Debentures of the
Series are not held by the Trust, then the
----------
Company shall have the right to redeem the Debentures
of the Series, in whole but not in part, at
----------
any time within 90 days following the occurrence of the
Tax Event, at 100% of the principal amount plus accrued
and unpaid interest thereon to the Redemption Date.
"Tax Event" means the receipt by the Trust or the
Company of an opinion of 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, 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 time or manner in which such amendment,
clarification or change is introduced or 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 Trust 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 of
the Series, (ii) interest payable by the
----------
Company on the Debentures of the Series is
----------
not, or will not be, fully deductible 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 (each
of the circumstances described in clauses (i), (ii) or
(iii) being an Adverse Tax Consequence);]
8. So long as any Debentures of the Series are
----------
Outstanding, the failure of the Company to pay interest
on any Debentures of the Series within 30
----------
days after the same becomes due and payable (whether or
not payment is prohibited by the provisions of Article
Fifteen of the Indenture) shall constitute an Event of
Default; provided, however, that a valid extension of
the interest payment period by the Company as
contemplated in Section 311 of the Indenture and
paragraph (9) of this Certificate shall not constitute
a failure to pay interest for this purpose;
9. Pursuant to Section 311 of the Indenture, the Company
shall have the right, at any time and from time to time
during the term of the Debentures of the
----------
Series, to extend the interest payment period to a
period not exceeding periods (an
---- ----------
"Extension Period") during which period interest will
be compounded . At the end of the Extension
----------
Period, the Company shall pay all interest accrued and
unpaid (together with interest thereon at the rate
specified for the Debentures of the Series,
----------
compounded semi-annually, to the extent permitted by
applicable law). However, during any such Extension
Period, the Company shall not declare or pay any
dividend or distribution (other than a dividend or
distribution in common stock of the Company) on, or
redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock, redeem any
indebtedness that is pari passu with the Debentures of
the Series, or make any guarantee payments
----------
with respect to the foregoing ("Restricted Payments").
Prior to the termination of any such Extension Period,
the Company may further extend the interest payment
period, provided that such Extension Period together
with all such previous and further extensions thereof
shall not exceed periods at any one
---- ----------
time or extend beyond the maturity date of the
Debentures of the Series. Any extension
----------
period with respect to payment of interest on the
Debentures of the Series, other Debt
----------
Securities or on any similar securities will apply to
all such securities and will also apply to
distributions with respect to the Preferred Trust
Securities and all other securities with terms
substantially the same as the Preferred Trust
Securities. Upon the termination of any such Extension
Period and the payment of all amounts then due, the
Company may select a new Extension Period, subject to
the above requirements. No interest shall be due and
payable during an Extension Period, except at the end
thereof. The Company will give the Trust or other
Holders and the Trustee notice of its election of an
Extension Period before the Business Day prior to the
record date for the interest payment which would occur
but for such election;
10. At any time, the Company will have the right to
dissolve the Trust and cause the Debentures of the
Series to be distributed to the holders of
----------
the Preferred Trust Securities in liquidation of the
Trust;
11. So long as any Securities are outstanding under the
Indenture, the Company shall not make any Restricted
Payments at any time the Company is in default under
the Guarantee with respect to the Trust or is in
default with respect to payments due on any Outstanding
Securities;
12. In the event that, at any time subsequent to the
initial authentication and delivery of the Debentures
of the Series, the Debentures of the
----------
Series are to be held by a securities
----------
depositary, the Company may at such time establish the
matters contemplated in clause (r) in the second
paragraph of Section 301 of the Indenture in an
Officer's Certificate supplemental to this Certificate;
13. No service charge shall be made for the registration of
transfer or exchange of the Debentures of the
Series; provided, however, that the Company
----------
may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with the exchange or transfer;
14. The Debentures of the Series shall have such
----------
other terms and provisions as are provided in the form
set forth in Exhibit A hereto, and shall be issued in
substantially such form;
15. The undersigned has read all of the covenants and
conditions contained in the Indenture relating to the
issuance of the Debentures of the Series and
----------
the definitions in the Indenture relating thereto and
in respect of which this certificate is made;
16. The statements contained in this certificate are based
upon the familiarity of the undersigned with the
Indenture, the documents accompanying this certificate,
and upon discussions by the undersigned with officers
and employees of the Company familiar with the matters
set forth herein;
17. In the opinion of the undersigned, he has made such
examination or investigation as is necessary to enable
the undersigned to express an informed opinion whether
or not such covenants and conditions have been complied
with;
18. In the opinion of the undersigned, such conditions and
covenants and conditions precedent, if any (including
any covenants compliance with which constitutes a
condition precedent) to the authentication and delivery
of the Debentures of the Series requested in
----------
the accompanying Company Order have been complied with;
and
19. If the Company shall make any deposit of money and/or
Government Obligations with respect to any Debentures
of the Series, or any portion of the
----------
principal amount thereof, as contemplated by Section
701 of the Indenture, the Company shall not deliver an
Officer's Certificate described in clause (z) in the
first paragraph of said Section 601 unless the Company
shall also deliver to the Trustee, together with such
Officer's Certificate, either:
(A) an instrument wherein the Company,
notwithstanding the satisfaction and discharge of its
indebtedness in respect of the Debentures of the
Series, shall assume the obligation (which
----------
shall be absolute and unconditional) to irrevocably
deposit with the Trustee or Paying Agent such
additional sums of money, if any, or additional
Government Obligations (meeting the requirements of
Section 601), if any, or any combination thereof, at
such time or times, as shall be necessary, together
with the money and/or Government Obligations
theretofore so deposited, to pay when due the principal
of and premium, if any, and interest due and to become
due on such Debentures of the Series or
----------
portions thereof, all in accordance with and subject to
the provisions of said Section 701; provided, however,
that such instrument may state that the obligation of
the Company to make additional deposits as aforesaid
shall be subject to the delivery to the Company by the
Trustee of a notice asserting the deficiency
accompanied by an opinion of an independent public
accountant of nationally recognized standing, selected
by the Trustee, showing the calculation thereof; or
(B) an Opinion of Counsel, based on a change in
law, to the effect that the Holders of such Debentures
of the Series, or portions of the principal
----------
amount thereof, will not recognize income, gain or loss
for United States federal income tax purposes as a
result of the satisfaction and discharge of the
Company's indebtedness in respect thereof and will be
subject to United States federal income tax on the same
amounts, at the same times and in the same manner as if
such satisfaction and discharge had not been effected.
<PAGE>
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this day of , .
----- -------- ----
------------------------------
<PAGE>
NO.
---------------
CUSIP NO.
----------
EXHIBIT A
[FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE]
ENSERCH CORPORATION
% JUNIOR SUBORDINATED DEBENTURES, SERIES
------ -
ENSERCH CORPORATION, a corporation duly organized and
existing under the laws of the State of Texas (herein referred to
as the "Company", which term includes any successor Person under
the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to , or
-------------------------
registered assigns, the principal sum of
--------------------
Dollars on , , and, except as hereinafter provided,
---------- ----
to pay interest on said principal sum, from, and including the
date of original issuance or from, and including, the most recent
Interest Payment Date to which interest has been paid or duly
provided for, at the rate of % per annum plus Additional
-----
Interest, if any, until the principal hereof is paid or made
available for payment. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. Interest on the Securities of this
series will accrue from, and including, , . In
------------ -----
the event that any Interest Payment Date is not a Business Day,
then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any
interest or other payment in respect of such delay). The interest
so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid
to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the
day, so long as this Security or any security for which it may by
its terms be exchanged remain in book-entry form, one Business
Day, and otherwise 15 days preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in The City of New York,
the State of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at
the option of the Company, interest on this Security may be paid
by check mailed to the address of the person entitled thereto, as
such address shall appear on the Security Register.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
ENSERCH CORPORATION
By:
-------------------------------------
ATTEST:
----------------------------
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
--------------------------------
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF JUNIOR SUBORDINATED DEBENTURE]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of , (herein, together with any
------------ -----
amendments thereto, called the "Indenture", which term shall have
the meaning assigned to it in such instrument), between the
Company and The Bank of New York, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture,
including the Board Resolutions and Officer's Certificate filed
with the Trustee on , creating the series
----------- -----
designated on the face hereof, for a statement of the respective
rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and
of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal
amount to $ .
------
[The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by
mail, at any time on or after , , as a whole or in
----------- ---
part, at the election of the Company, at a Redemption Price equal
to the following prices, expressed in percentages of the
principal amount, together with accrued interest to but excluding
the Redemption Date. If redeemed during the 12-month period
beginning :
----------
Redemption
Year Price
---- ---------------
and at 100% on or after .
----------
Interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holder of
such Security, or one or more Predecessor Securities, of record
at the close of business on the related Regular Record Date
referred to on the face hereof, all as provided in the Indenture.
If a Tax Event shall occur and be continuing and either
(i) in the opinion of counsel to the Company experienced in such
matters, there would in all cases, after effecting the
termination of the Trust and the distribution of the Securities
of this series to the holders of the Preferred Trust Securities
in exchange therefor, be more than an insubstantial risk that an
Adverse Tax Consequence (as defined below) would continue to
exist or (ii) the Securities of this series are not held by the
Trust, then the Company shall have the right to redeem the
Securities, in whole but not in part, at any time within 90 days
following the occurrence of the Tax Event, at 100% of the
principal amount plus accrued and unpaid interest thereon to the
Redemption Date.
"Tax Event" means the receipt by the Trust or the
Company of an opinion of 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, 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 time or manner in which such amendment,
clarification or change is introduced or 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 Trust 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
Securities of this series, (ii) interest payable by the Company
on the Securities of this series is not, or will not be, fully
deductible 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 (each
of the circumstances described in clauses (i), (ii) or (iii)
being an "Adverse Tax Consequence").
In the event of redemption of this Security in part only, a
new Security or Securities of this series and of like tenor for
the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
So long as no Event of Default under the Indenture
shall have occurred and be continuing, the Company shall have the
right at any time and from time to time during the term of the
Securities of this series to extend the interest payment period
to a period not exceeding periods (an "Extended
---- ----------
Interest Payment Period"), and at the end of such Extended
Interest Payment Period, the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the same
rate as specified for the Securities of this series, compounded
, to the extent permitted by applicable law); provided,
----------
however, that during such Extended Interest Payment Period the
Company shall not declare or pay any dividend or distribution
(other than a dividend or distribution in common stock of the
Company) on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock, redeem any
indebtedness that is pari passu with the Securities of this
series, or make any guarantee payments with respect to the
foregoing. Prior to the termination of any such Extended
Interest Payment Period, the Company may further extend the
interest payment period, provided that such Extended Interest
Payment Period, together with all such previous and further
extensions thereof, may not exceed periods or
---- ----------
extend beyond the Stated Maturity of the Securities of this
series. Upon the termination of any such Extended Interest
Payment Period and the payment of all amounts then due, the
Company may select a new Extended Interest Payment Period,
subject to the above requirements. No interest during the
Extended Interest Payment Period, except at the end thereof,
shall be due and payable. The Company shall give the Holder of
this Security notice of its selection of such Extended Interest
Payment Period as provided in or pursuant to the Indenture.
The Securities of this series are issuable only in
registered form without coupons in denominations of $ and
------
any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
Exhibit 4(i)
GUARANTEE AGREEMENT
Between
ENSERCH Corporation
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
________ __, ____
<PAGE>
TABLE OF CONTENTS
_________________
Page
____
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 DEFINITIONS . . . . . . . . . . . . . . . 1
ARTICLE II TRUST INDENTURE ACT . . . . . . . . . . . . . . 4
SECTION 2.01 TRUST INDENTURE ACT;
Application 4
SECTION 2.02 LISTS OF HOLDERS OF PREFERRED
TRUST SECURITIES . . . . . . . . . . . . . . . . 4
SECTION 2.03 REPORTS BY THE GUARANTEE
TRUSTEE . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.04 PERIODIC REPORTS TO GUARANTEE
TRUSTEE . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.05 EVIDENCE OF COMPLIANCE WITH
CONDITIONS PRECEDENT . . . . . . . . . . . . . . 5
SECTION 2.06 EVENTS OF DEFAULT; WAIVER . . . 5
SECTION 2.07 EVENT OF DEFAULT; NOTICE . . . 5
SECTION 2.08 CONFLICTING INTERESTS . . . . . 5
ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.01 POWERS AND DUTIES OF THE
GUARANTEE TRUSTEE . . . . . . . . . . . . . . . 6
SECTION 3.02 CERTAIN RIGHTS OF GUARANTEE
TRUSTEE . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.03 NOT RESPONSIBLE FOR RECITALS
OR ISSUANCE OF GUARANTEE . . . . . . . . . . . . 9
ARTICLE IV GUARANTEE TRUSTEE . . . . . . . . . . . . . . . 10
SECTION 4.01 GUARANTEE TRUSTEE;
ELIGIBILITY . . . . . . . . . . . . . . . . . . 10
SECTION 4.02 COMPENSATION AND
REIMBURSEMENT . . . . . . . . . . . . . . . . . 10
SECTION 4.03 APPOINTMENT, REMOVAL AND
RESIGNATION OF GUARANTEE
TRUSTEE . . . . . . . . . . . . . . . . . 11
ARTICLE V GUARANTEE . . . . . . . . . . . . . . . . . . . 12
SECTION 5.01 GUARANTEE . . . . . . . . . . . 12
SECTION 5.02 WAIVER OF NOTICE AND DEMAND . . 12
SECTION 5.03 OBLIGATIONS NOT AFFECTED . . . 12
SECTION 5.04 RIGHTS OF HOLDERS . . . . . . . 13
SECTION 5.05 GUARANTEE OF PAYMENT . . . . . 14
SECTION 5.06 SUBROGATION . . . . . . . . . . 14
SECTION 5.07 INDEPENDENT OBLIGATIONS . . . . 14
ARTICLE VI SUBORDINATION . . . . . . . . . . . . . . . . . 14
SECTION 6.01 SUBORDINATION . . . . . . . . . 14
ARTICLE VII TERMINATION . . . . . . . . . . . . . . . . . . 15
SECTION 7.01 TERMINATION . . . . . . . . . . 15
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . 15
SECTION 8.01 SUCCESSORS AND ASSIGNS . . . . 15
SECTION 8.02 AMENDMENTS . . . . . . . . . . 15
SECTION 8.03 NOTICES . . . . . . . . . . . . 16
SECTION 8.04 BENEFIT . . . . . . . . . . . . 17
SECTION 8.05 INTERPRETATION . . . . . . . . 17
SECTION 8.06 GOVERNING LAW . . . . . . . . . 17
<PAGE>
CROSS-REFERENCE TABLE*
_____________________
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
------------------- ---------
310(a) . . . . . . . . . . . . . . . . . . . . . 4.01(a)
310(b) . . . . . . . . . . . . . . . . . . . . . 4.01(c), 2.08
310(c) . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(b) . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(c) . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . 2.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . 2.02(b)
313 . . . . . . . . . . . . . . . . . . . . . . . 2.03
314(a) . . . . . . . . . . . . . . . . . . . . . 2.04
314(b) . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . 2.05
314(d) . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . 1.01, 2.05,
3.02
314(f) . . . . . . . . . . . . . . . . . . . . . 2.01, 3.02
315(a) . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(b) . . . . . . . . . . . . . . . . . . . . . 2.07
315(c) . . . . . . . . . . . . . . . . . . . . . 3.01
315(d) . . . . . . . . . . . . . . . . . . . . . 3.01(d)
316(a) . . . . . . . . . . . . . . . . . . . . . 5.04(a), 2.06
316(b) . . . . . . . . . . . . . . . . . . . . . 5.03
316(c) . . . . . . . . . . . . . . . . . . . . . 2.02
317(a) . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . 2.01(b)
318(b) . . . . . . . . . . . . . . . . . . . . . 2.01
318(c) . . . . . . . . . . . . . . . . . . . . . 2.01(a)
_____________
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation
of any of its terms or provisions.
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated
as of ________ __, ____, is executed and delivered by ENSERCH
Corporation, a Texas corporation (the "Guarantor"), and The Bank
of New York, as trustee (the "Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of
the Preferred Trust Securities (as defined herein) of ENSERCH
Capital I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of ________ __, ____
among the Trustees of the Issuer, ENSERCH Corporation, as
Depositor, and the several Holders (as defined therein), the
Issuer is issuing as of the date hereof $___________ aggregate
Liquidation Amount of its _____% Preferred Trust Securities (the
"Preferred Trust Securities") representing ownership interests in
the Issuer and having the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Trust Securities are to be
issued for sale by the Issuer and the proceeds are to be invested
in $_____________ principal amount of Debentures (as defined in
the Trust Agreement); and
WHEREAS, in order to enhance the value of the Preferred
Trust Securities, the Guarantor desires to irrevocably and
unconditionally agree, to the extent set forth herein, to pay to
the Holders the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the purchase of
Debentures, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to
time.
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. As used in this
Guarantee Agreement, the terms set forth below shall, unless the
context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise
defined herein shall have the meanings assigned to such terms in
the Trust Agreement as in effect on the date hereof.
"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.
"Common Trust Securities" means the securities
representing common ownership interests in the assets of the
Issuer.
"Event of Default" means a default by the Guarantor on
any of its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments
or distributions, without duplication, with respect to the
Preferred Trust Securities, to the extent not paid or made by or
on behalf of the Issuer: (i) any accrued and unpaid Distributions
that are required to be paid on such Preferred Trust Securities
but only if and to the extent that the Property Trustee has
available in the Payment Account funds sufficient to make such
payment, (ii) the redemption price (the "Redemption Price"), and
all accrued and unpaid Distributions to the date of redemption,
with respect to the Preferred Trust Securities called for
redemption by the Issuer but only if and to the extent that the
Property Trustee has available in the Payment Account funds
sufficient to make such payment, (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer
(other than in connection with the distribution of Debentures to
the Holders in exchange for Preferred Trust Securities as
provided in the Trust Agreement or upon a redemption of all of
the Preferred Trust Securities upon maturity or redemption of the
Debentures as provided in the Trust Agreement), the lesser of (a)
the aggregate of the Liquidation Amount of all Preferred Trust
Securities and all accrued and unpaid Distributions on the
Preferred Trust Securities to the date of payment but only if and
to the extent that the Property Trustee has available in the
Payment Account funds sufficient to make such payment, and (b)
the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment pursuant to the terms of this Guarantee
Agreement and thereafter means each such Successor Guarantee
Trustee.
"Holder" shall mean any holder, as registered on the
books and records of the Issuer, of any Preferred Trust
Securities then outstanding; provided, however, that in
determining whether the holders of the requisite percentage of
Preferred Trust Securities have given any request, notice,
consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor.
"Majority in Liquidation Amount of the Preferred Trust
Securities" means a vote by Holders, voting separately as a
class, of more than 50% of the aggregate Liquidation Amount of
all Preferred Trust Securities.
"Officer's Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President, any Vice President, the Treasurer, or any Assistant
Treasurer of the Guarantor, and delivered to the Guarantee
Trustee. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
(a) a statement that the officer signing the Officer's
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 Officer's 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.
"Person" means any individual, corporation,
partnership, joint venture, trust, unincorporated organization or
government, or any agency or political subdivision thereof, or
any other entity of whatever nature.
"Responsible Officer" means, with respect to the
Guarantee Trustee, any vice-president, any assistant vice-
president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Corporate Trust Department of
the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
"Subordinated Indenture" means the Indenture (for
Unsecured Subordinated Debt Securities relating to Trust
Securities) dated as of ____________ __, ____, between the
Guarantor (the "Debenture Issuer") and The Bank of New York, as
trustee pursuant to which the Debentures are issued, together
with any indenture supplemental thereto.
"Successor Guarantee Trustee" means a successor
Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required or deemed
to be part of this Guarantee Agreement and shall, to the extent
applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Section 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 2.02 LISTS OF HOLDERS OF PREFERRED TRUST
SECURITIES.
(a) The Guarantor shall furnish or cause to be
furnished to the Guarantee Trustee (a) semiannually, not later
than December 31 and June 30 in each year, a list, in such form
as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not
more than 15 days prior to the delivery thereof, and (b) at such
other times as the Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days
prior to the time such list is furnished; provided that, the
Guarantor shall not be obligated to provide such List of Holders
at any time the List of Holders does not differ from the most
recent List of Holders given to the Guarantee Trustee by the
Guarantor. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Section 311(a) of the Trust Indenture Act,
subject to the provisions of Section 311(b) and Section 312(b) of
the Trust Indenture Act.
SECTION 2.03 REPORTS BY THE GUARANTEE TRUSTEE.
Within 60 days after December 31 of each year, commencing
December 31, ____, the Guarantee Trustee shall provide to the
Holders such reports, if any, as are required by Section 313(a)
of the Trust Indenture Act in the form and in the manner provided
by Section 313(a) of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Sections
313(b), (c) and (d) of the Trust Indenture Act.
SECTION 2.04 PERIODIC REPORTS TO GUARANTEE
TRUSTEE. The Guarantor shall provide to the Guarantee Trustee
such documents, reports and information, if any, as required by
Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314
of the Trust Indenture Act.
SECTION 2.05 EVIDENCE OF COMPLIANCE WITH
CONDITIONS PRECEDENT. The Guarantor shall provide to the
Guarantee Trustee such evidence of compliance with any conditions
precedent provided for in this Guarantee Agreement as and to the
extent required by 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 Officer's Certificate.
SECTION 2.06 EVENTS OF DEFAULT; WAIVER. The
Holders of a Majority in Liquidation Amount of Preferred Trust
Securities may, by vote, on behalf of all of the Holders, waive
any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event
of Default or impair any right consequent thereon.
SECTION 2.07 EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders, notices of all Events of
Default known to the Guarantee Trustee, unless such defaults have
been cured or waived before the giving of such notice, provided
that the Guarantee Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive
committee, or a trust committee of directors or Responsible
Officers of the Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless a Responsible Officer
charged with the administration of the Trust Agreement shall have
obtained written notice of such Event of Default.
SECTION 2.08 CONFLICTING INTERESTS. The Trust
Agreement and the Subordinated Indenture shall be deemed to be
specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.01 POWERS AND DUTIES OF THE GUARANTEE
TRUSTEE.
(a) This Guarantee Agreement shall be held by the
Guarantee Trustee for the benefit of the Holders, and the
Guarantee Trustee shall not transfer this Guarantee Agreement or
any rights hereunder to any Person except a Holder exercising his
or her rights pursuant to Section 5.04 or to a Successor
Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee Trustee.
The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, and such
vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Guarantee Trustee.
(b) The Guarantee Trustee, prior to the occurrence of
any Event of Default and after the curing or waiving of all
Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set
forth in this Guarantee Agreement, and no implied covenants or
obligations shall be read into this Guarantee Agreement against
the Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.06), and
is actually known to a Responsible Officer of the Guarantee
Trustee, the Guarantee Trustee shall exercise such of the rights
and powers vested in it by this Guarantee Agreement, and use the
same degree of care and skill in its exercise thereof, as a
prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such
Events of Default that may have occurred:
(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by
the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties
and obligations as are specifically set forth in
this Guarantee Agreement, and no implied covenants
or obligations shall be read into this Guarantee
Agreement against the Guarantee Trustee; and
(B) in the absence of bad faith on the part
of the Guarantee Trustee, the Guarantee Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee
Agreement; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished
to the Guarantee Trustee, the Guarantee Trustee
shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Guarantee Trustee, unless it
shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken
by it in good faith in accordance with the direction of
the Holders of a Majority in Liquidation Amount of the
Preferred Trust Securities relating to the time, method
and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any
trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement
shall require the Guarantee Trustee to expend or risk
its own funds or otherwise incur any financial
liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or
powers, if the Guarantee 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 Guarantee Agreement or adequate
indemnity, reasonably satisfactory to the Guarantee
Trustee, against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly provided, every
provision of this Guarantee Agreement relating to the conduct or
affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of Sections 3.01(b) and
3.01(c).
SECTION 3.02 CERTAIN RIGHTS OF GUARANTEE
TRUSTEE.
(a) Subject to the provisions of Section 3.01:
(i) the Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting
upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be
sufficiently evidenced by an Officer's Certificate;
(iii) whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem
it desirable that a matter be proved or established
before taking, suffering or omitting any action
hereunder, the Guarantee Trustee (unless other evidence
is herein specifically prescribed) may, in the absence
of bad faith on its part, request and rely upon an
Officer's Certificate which, upon receipt of such
request, shall be promptly delivered by the Guarantor;
(iv) the Guarantee Trustee may consult with counsel
of its choice, and the written advice or opinion of
such counsel with respect to legal matters 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 on such advice
or opinion; such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any
of its employees; the Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any
court of competent jurisdiction;
(v) the Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Guarantee Agreement at the request
or direction of any Holder, unless such Holder shall
have provided to the Guarantee Trustee such adequate
security and indemnity as would satisfy a reasonable
person in the position of the Guarantee Trustee,
against the costs, expenses (including attorneys' fees
and expenses) and liabilities that might be incurred by
it in complying with such request or direction,
including such reasonable advances as may be requested
by the Guarantee Trustee; provided that, nothing
contained in this Section 3.02(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence and
continuance of an Event of Default, of its obligation
under the last sentence of Section 3.01(b) to exercise
the rights and powers vested in it by this Guarantee
Agreement;
(vi) the Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit;
(vii) the Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or
attorneys, and the Guarantee 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;
(viii) whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (1) may request
instructions from the Holders of a Majority in
Liquidation Amount of the Preferred Trust Securities,
(2) may refrain from enforcing such remedy or right or
taking such other action until such instructions are
received, and (3) shall be protected in relying on or
acting in accordance with such instructions;
(ix) the Guarantee 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 form) (or any
rerecording, refiling or re-registration thereof); and
(x) the Guarantee 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 Guarantee Agreement.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the Guarantee 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 Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed
to be a duty.
SECTION 3.03 NOT RESPONSIBLE FOR RECITALS OR
ISSUANCE OF GUARANTEE.
The recitals contained in this Guarantee Agreement
shall be taken as the statements of the Guarantor, and the
Guarantee Trustee does not assume any responsibility for their
correctness. The Guarantee Trustee makes no representation as to
the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01 GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing
business under the laws of the United States of America
or any State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to
above, then, for the purposes of this Section
4.01(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease
to be eligible to so act under Section 4.01(a), the
Guarantee Trustee shall immediately resign in the manner and
with the effect set out in Section 4.03(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b)
of the Trust Indenture Act, the Guarantee Trustee and
Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.02 COMPENSATION AND REIMBURSEMENT.
The Guarantor agrees:
(a) to pay the Guarantee Trustee from time to time
such reasonable compensation as the Guarantor and the Guarantee
Trustee shall from time to time agree in writing for all services
rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Guarantee Trustee in accordance with the provisions of
this Guarantee Agreement (including the reasonable compensation
and expenses of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence
or bad faith; and
(c) to indemnify each of the Guarantee Trustee and any
predecessor Guarantee Trustee for, and to hold it harmless from
and against, any and all loss, damage, claim, liability or
expense, including taxes (other than taxes based upon the income
of the Guarantee Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance of the trusts created by, or the administration of,
this Guarantee Agreement, including the 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 Guarantor under this Section, the Guarantee Trustee shall
have a lien prior to the Preferred Trust Securities upon all the
property and funds held or collected by the Guarantee Trustee as
such, except funds held in trust for the payment of principal of,
and premium (if any) or interest on, particular obligations of
the Guarantor under this Guarantee Agreement.
The provisions of this Section shall survive the
termination of this Guarantee Agreement.
SECTION 4.03 APPOINTMENT, REMOVAL AND
RESIGNATION OF GUARANTEE TRUSTEE.
(a) Subject to Section 4.03(b), unless an Event of
Default shall have occurred and be continuing, the Guarantee
Trustee may be appointed or removed without cause at any time by
the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall
hold office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section
4.03 within 60 days after delivery to the Guarantor of an
instrument of resignation or removal, the Guarantee Trustee
resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee.
Such court may thereupon, after prescribing such notice, if any,
as it may deem proper, appoint a Successor Guarantee Trustee.
(e) The Guarantor shall give notice of each
resignation and each removal of the Guarantee Trustee and each
appointment of a successor Guarantee Trustee to all Holders in
the manner provided in Section 8.03 hereof. Each notice shall
include the name of the successor Guarantee Trustee and the
address of its Corporate Trust Office.
(f) No Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01 GUARANTEE. The Guarantor
irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of
any defense, right of set-off or counterclaim which the Issuer
may have or assert. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 5.02 WAIVER OF NOTICE AND DEMAND. The
Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a
proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices
and demands.
SECTION 5.03 OBLIGATIONS NOT AFFECTED. The
obligation of the Guarantor to make the Guarantee Payments under
this Guarantee Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of
any express or implied agreement, covenant, term or
condition relating to the Preferred Trust Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the Distributions,
Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Preferred Trust Securities or
the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the
Preferred Trust Securities (other than an extension of time
for payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures
permitted by the Subordinated Indenture);
(c) any failure, omission, delay or lack of diligence
on the part of the Property Trustee or the Holders to
enforce, assert or exercise any right, privilege, power or
remedy conferred on the Property Trustee or the Holders
pursuant to the terms of the Preferred Trust Securities, or
any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Trust Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or
defense of a guarantor, it being the intent of this Section
5.03 that the obligations of the Guarantor hereunder shall
be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Guarantee Trustee, the
Property Trustee or the Holders to give notice to, or obtain
consent of, the Guarantor or any other Person with respect to the
happening of any of the foregoing.
SECTION 5.04 RIGHTS OF HOLDERS. The Guarantor
expressly acknowledges that: (i) this Guarantee Agreement will be
deposited with the Guarantee Trustee to be held for the benefit
of the Holders; (ii) if an Event of Default has occurred and is
continuing, the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders
of a Majority in Liquidation Amount of the Preferred Trust
Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and (iv) any Holder may
institute a legal proceeding directly against the Guarantor to
enforce its rights under this Guarantee Agreement without first
instituting a legal proceeding against the Issuer or any other
Person.
SECTION 5.05 GUARANTEE OF PAYMENT. This
Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged
except by payment of the Guarantee Payments in full (without
duplication).
SECTION 5.06 SUBROGATION. The Guarantor shall
be subrogated to all, if any, rights of the Holders against the
Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that
the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise
any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a
result of payment under this Guarantee Agreement, if, at the time
of any such payment, any amounts of Guarantee Payments are due
and unpaid under this Guarantee Agreement. If any amount shall
be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders
and to pay over such amount to the Holders.
SECTION 5.07 INDEPENDENT OBLIGATIONS. The
Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the
Preferred Trust Securities and that the Guarantor shall be liable
as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee Agreement notwithstanding
the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.03.
ARTICLE VI
SUBORDINATION
SECTION 6.01 SUBORDINATION. This Guarantee
Agreement will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, including the
Debentures, except those made pari passu or subordinate by their
terms, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and
with any guarantee now or hereafter entered into by the Guarantor
in respect of any preferred or preference stock of any Affiliate
of the Guarantor, and (iii) senior to all common stock of the
Guarantor. Nothing in this Section 6.01 shall apply to claims
of, or payments to, the Guarantee Trustee under or pursuant to
Section 4.02 hereof.
ARTICLE VII
TERMINATION
SECTION 7.01 TERMINATION. Subject to Section
4.02 hereof, this Guarantee Agreement shall terminate and be of
no further force and effect upon: (i) full payment of the
Redemption Price of all Preferred Trust Securities, and all
accrued and unpaid Distributions to the date of redemption, (ii)
the distribution of Debentures to Holders in exchange for all of
the Preferred Trust Securities, or (iii) full payment of the
amounts payable in accordance with the Trust Agreement upon
liquidation of the Issuer. Notwithstanding the foregoing, this
Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must
restore payment of any sums paid with respect to Preferred Trust
Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 SUCCESSORS AND ASSIGNS. All
guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit
of the Holders of the Preferred Trust Securities then
outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article
Eleven of the Subordinated Indenture, the Guarantor shall not
assign its obligations hereunder.
SECTION 8.02 AMENDMENTS. This Guarantee
Agreement may be amended only by an instrument in writing entered
into by the Guarantor and the Guarantee Trustee. Except with
respect to any changes which do not materially adversely affect
the rights of Holders (in which case no consent of Holders will
be required), this Guarantee Agreement may only be amended with
the prior approval of the Holders of not less than 66 2/3% in
aggregate Liquidation Amount of all the outstanding Preferred
Trust Securities. The provisions of Article VI of the Trust
Agreement concerning meetings of Holders shall apply to the
giving of such approval. Nothing herein contained shall be
deemed to require that the Guarantee Trustee enter into any
amendment of this Guarantee Agreement.
SECTION 8.03 NOTICES. Any notice, request or
other communication required or permitted to be given hereunder
shall be in writing, duly signed by the party giving such notice,
and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set
forth below or such other address as the Guarantor may give
notice of to the Guarantee Trustee and the Holders of the
Preferred Trust Securities:
ENSERCH Corporation
ENSERCH Center
1601 Bryan Street
Dallas, Texas 75201
Facsimile No: 214-__________
Attention: _______________
(b) if given to the Issuer, in care of the
Administrative Trustees, at the Issuer's (and the
Administrative Trustees') address set forth below or such
other address as the Administrative Trustees on behalf of
the Issuer may give notice of to the Guarantee Trustee and
the Holders:
ENSERCH Capital I
c/o ENSERCH Corporation
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Facsimile No: 214-__________
Attention: Administrative Trustees
(c) if given to the Guarantee Trustee, to the address
set forth below or such other address as the Guarantee
Trustee may give notice of to the Guarantor and the Holders
of the Preferred Trust Securities:
The Bank of New York
101 Barclay Street
21 West
New York, New York 10286
Facsimile No: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
(d) if given to any Holder, at the address set forth
on the books and records of the Issuer.
All notices hereunder shall be deemed to have been
given when received in person, telecopied with receipt confirmed,
or mailed by first class mail, postage prepaid, except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 8.04 BENEFIT. This Guarantee Agreement
is solely for the benefit of the Holders and, subject to Section
3.01(a), is not separately transferable from the __________
Securities.
SECTION 8.05 INTERPRETATION. In this Guarantee
Agreement, unless the context otherwise requires:
(a) a term defined anywhere in this Guarantee
Agreement has the same meaning throughout;
(b) all references to "the Guarantee Agreement" or
"this Guarantee Agreement" are to this Guarantee Agreement
as modified, supplemented or amended from time to time;
(c) all references in this Guarantee Agreement to
Articles and Sections are to Articles and Sections of this
Guarantee Agreement unless otherwise specified;
(d) a term defined in the Trust Indenture Act has the
same meaning when used in this Guarantee Agreement unless
otherwise defined in this Guarantee Agreement or unless the
context otherwise requires;
(e) a reference to the singular includes the plural
and vice versa; and
(f) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter
genders.
SECTION 8.06 GOVERNING LAW. THIS GUARANTEE
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and
year first above written.
ENSERCH Corporation
By:
____________________________
Name:
Title:
The Bank of New York,
as Guarantee Trustee
By:
_____________________________
Name:
Title:
Exhibit 4(j)
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of __________, _____ between ENSERCH
Corporation, a Texas corporation ("ENSERCH"), and ENSERCH Capital
I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Trust
Securities (the "Common Trust Securities") to and receive
Debentures from ENSERCH and to issue its _____ Cumulative
Preferred Trust Securities (the "Preferred Trust Securities")
with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of
the Trust dated as of __________, ______ as the same may be
amended from time to time (the "Trust Agreement");
WHEREAS, ENSERCH is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance of
the Preferred Trust Securities by each holder thereof, which
acceptance ENSERCH hereby agrees shall benefit ENSERCH and which
acceptance ENSERCH acknowledges will be made in reliance upon the
execution and delivery of this Agreement, ENSERCH, including in
its capacity as holder of the Common Trust Securities, and the
Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by ENSERCH.
_______________________
Subject to the terms and conditions hereof, ENSERCH hereby
irrevocably and unconditionally assumes the full payment, when
and as due, of any and all Obligations (as hereinafter defined)
to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries"). As used
herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than obligations of the Trust to
pay to holders of any Preferred Trust Securities the amounts due
such holders pursuant to the terms of the Preferred Trust
Securities. This Agreement 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 1.02. Term of Agreement.
________________
This Agreement shall terminate and be of no further force and
effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at
any time any holder of Preferred Trust Securities or any
Beneficiary must restore payment of any sums paid under the
Preferred Trust Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by ENSERCH and The Bank
of New York, as guarantee trustee, or under this Agreement for
any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice.
________________
ENSERCH hereby waives notice of acceptance of this Agreement
and of any Obligation to which it applies or may apply, and
ENSERCH hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption
and all other notices and demands.
Section 1.04. No Impairment.
_____________
The obligations, covenants, agreements and duties of ENSERCH
under this Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of
the assets of the Trust.
Neither the Trust nor any Beneficiary shall have any obligation
to give notice to, or obtain the consent of, ENSERCH with respect
to the happening of any of the foregoing.
Section 1.05. Enforcement.
___________
A Beneficiary may enforce this Agreement directly against
ENSERCH and ENSERCH waives any right or remedy to require that
any action be brought against the Trust or any other person or
entity before proceeding against ENSERCH.
ARTICLE II
Section 2.01. Binding Effect.
______________
All of the obligations, covenants and agreements contained in
this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of ENSERCH and shall inure to the
benefit of the Beneficiaries and their successors and assigns.
Section 2.02. Amendment.
__________
So long as there remains any Beneficiary or any Preferred Trust
Securities of any series shall be outstanding, this Agreement
shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Trust Securities.
Section 2.03. Notices.
________
Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or
certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of an answer-back, if
sent by telex), to wit:
ENSERCH Capital I
c/o ______________________, Administrative Trustee
1601 Bryan Street
Dallas, Texas 75201
Facsimile No.: 214-________
ENSERCH Corporation
1601 Bryan Street
Dallas, Texas 75201
Facsimile No.: 214-________
Attention: __________
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first
above
written.
ENSERCH CORPORATION
By:______________________________
Name:
Title:
ENSERCH CAPITAL I
By:_______________________________
not in his individual capacity,
but solely as Administrative
Trustee
Exhibit 4(k)
[Clearing Agency Legend]
Certificate Number Number of Preferred Trust Securities
P- CUSIP NO.
Certificate Evidencing Preferred Trust Securities
of
ENSERCH Capital I
% Cumulative Preferred Trust Securities
(liquidation amount $1,000 per Preferred Trust Security)
ENSERCH Capital I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby
certifies that ____________ (the "Holder") is the registered
owner of _____ (_____) Preferred Trust Securities of the Trust
representing an undivided beneficial interest in the assets of
the Trust and designated the ENSERCH Capital I _____% Cumulative
Preferred Trust Securities (liquidation amount $_____ per
Preferred Trust Security) (the "Preferred Trust Securities").
The Preferred Trust Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper
form for transfer as provided in Section 5.04 or 5.11 of the
Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Preferred Trust Securities are set forth in,
and this certificate and the Preferred Trust Securities
represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of __________, ______, as
the same may be amended from time to time (the "Trust
Agreement"). The holder of this certificate is entitled to the
benefits of the Guarantee Agreement of ENSERCH Corporation, a
Texas corporation, and The Bank of New York, as guarantee
trustee, dated as of __________, _____ (the "Guarantee") to the
extent provided therein. The Trust will furnish a copy of the
Trust Agreement and the Guarantee to the holder of this
certificate without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees
of the Trust has executed this certificate for and on behalf of
the Trust.
Dated:
ENSERCH CAPITAL I
By:_______________________________
not in his (her)
individual capacity, but
solely as Administrative
Trustee
Countersigned and Registered:
TEXAS UTILITIES SERVICES INC.,
Transfer Agent and Registrar
By:_________________________________
(Authorized Signature)
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Trust Security to:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Insert assignee's social security or tax identification number)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Insert address and zip code of assignee)
of the Preferred Trust Securities represented by this Certificate
and irrevocably appoints
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
attorney to transfer such Preferred Trust Securities Certificate
on the books of the
Trust. The attorney may substitute another to act for him or
her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Trust Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Trust Securities Certificate)
Exhibit 5(a)
WORSHAM, FORSYTHE & WOOLDRIDGE, L.L.P.
ATTORNEYS AND COUNSELORS AT LAW
ENERGY PLAZA
1601 BRYAN STREET, 30TH FLOOR
DALLAS, TEXAS 75201
-------------------
TELEPHONE (214) 979-3000
FAX (214) 880-0011
January 7, 1998
ENSERCH Corporation
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Ladies and Gentlemen:
Reference is made to the Registration Statement
(Registration Statement) on Form S-3 to be filed by ENSERCH
Corporation (Company) and ENSERCH Capital I (Trust) on or about
the date hereof, with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, for the
registration of (i) securities (Securities) in an aggregate
offering amount of $275,000,000, including (a) debt securities
(Debt Securities) of the Company to be issued pursuant to the
terms of one or more indentures (each a Debt Securities
Indenture); and (b) preferred trust securities (Preferred Trust
Securities) of the Trust; (ii) the guarantee of the Company with
respect to the Preferred Trust Securities (the Guarantee); and
(iii) the Company's Junior Subordinated Debentures (Subordinated
Debentures) to be issued pursuant to the terms of an indenture
(Subordinated Indenture) and purchased by the Trust with the
proceeds of the sale of the Preferred Trust Securities. In
connection therewith, we have reviewed such documents and records
as we have deemed necessary to enable us to express an opinion on
the matters covered hereby.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly organized and
existing under the laws of the State of Texas.
2. All requisite action necessary to make any Debt
Securities valid, legal and binding obligations of the Company
will have been taken when:
a. A Debt Securities Indenture with respect to such
Debt Securities shall have been executed and delivered by a duly
authorized officer or representative of the Company and by the
trustee under such Debt Securities Indenture; and
b. The Board of Directors of the Company, or an
officer duly authorized thereby, shall have taken such action,
pursuant to the terms of such Debt Securities Indenture, as may
be necessary to fix and determine the terms of such Debt
Securities, and such Debt Securities shall have been issued and
delivered in accordance with the terms and provisions of such
Debt Securities Indenture.
3. All requisite action necessary to make the Guarantee a
valid, legal and binding obligation of the Company will have been
taken when the Board of Directors of the Company, or an officer
duly authorized thereby, shall have taken such action as may be
necessary to fix and determine the terms of the Guarantee and the
Guarantee shall have been duly executed and delivered by the
parties thereto.
4. All requisite action necessary to make the Subordinated
Debentures valid, legal and binding obligations of the Company
will have been taken when:
a. The Subordinated Indenture shall have been
executed and delivered by a duly authorized officer or
representative of the Company and by the trustee under the
Subordinated Indenture; and
b. The Board of Directors of the Company, or an
officer duly authorized thereby, shall have taken such action,
pursuant to the terms of the Subordinated Indenture, as may be
necessary to fix and determine the terms of the Subordinated
Debentures, and the Subordinated Debentures shall have been
issued and delivered in accordance with the terms and provisions
of the Subordinated Indenture.
We are members of the State Bar of Texas and do not hold
ourselves out as experts on the laws of New York. As to all
matters of New York law, we have with your consent relied upon an
opinion of even date herewith addressed to you by Reid & Priest
LLP of New York, New York.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of our name
as counsel in the Registration Statement.
Very truly yours,
WORSHAM, FORSYTHE &
WOOLDRIDGE, L.L.P.
By: /s/ Timothy A. Mack
--------------------------
A Partner
Exhibit 5(b) and 8
REID & PRIEST LLP
40 WEST 57TH STREET
NEW YORK, NY 10019-4097
TELEPHONE 212 603-2000
FAX 212 603-2001
January 7, 1998
ENSERCH Corporation
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Ladies and Gentlemen:
Reference is made to the Registration Statement
(Registration Statement) on Form S-3 to be filed by ENSERCH
Corporation (Company) and ENSERCH Capital I (Trust) on or about
the date hereof, with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, for the
registration of (i) securities (Securities) in an aggregate
offering amount of $275,000,000, including (a) debt securities
(Debt Securities) of the Company to be issued pursuant to the
terms of one or more indentures (each a Debt Securities
Indenture); and (b) preferred trust securities (Preferred Trust
Securities) of the Trust; (ii) the guarantee of the Company with
respect to the Preferred Trust Securities (the Guarantee); and
(iii) the Company's Junior Subordinated Debentures (Subordinated
Debentures) to be issued pursuant to the terms of an indenture
(Subordinated Indenture) and purchased by the Trust with the
proceeds of the sale of the Preferred Trust Securities. In
connection therewith, we have reviewed such documents and records
as we have deemed necessary to enable us to express an opinion on
the matters covered hereby.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly organized and
existing under the laws of the State of Texas.
2. All requisite action necessary to make any Debt
Securities valid, legal and binding obligations of the Company
will have been taken when:
a. A Debt Securities Indenture with respect to such
Debt Securities shall have been executed and delivered by a duly
authorized officer or representative of the Company and by the
trustee under such Debt Securities Indenture; and
b. The Board of Directors of the Company, or an
officer duly authorized thereby, shall have taken such action,
pursuant to the terms of such Debt Securities Indenture, as may
be necessary to fix and determine the terms of such Debt
Securities, and such Debt Securities shall have been issued and
delivered in accordance with the terms and provisions of such
Debt Securities Indenture.
3. All requisite action necessary to make the Guarantee a
valid, legal and binding obligation of the Company will have been
taken when the Board of Directors of the Company, or an officer
duly authorized thereby, shall have taken such action as may be
necessary to fix and determine the terms of the Guarantee and the
Guarantee shall have been duly executed and delivered by the
parties thereto;
4. All requisite action necessary to make the Subordinated
Debentures valid, legal and binding obligations of the Company
will have been taken when:
a. The Subordinated Indenture shall have been
executed and delivered by a duly authorized officer or
representative of the Company and by the trustee under the
Subordinated Indenture; and
b. The Board of Directors of the Company, or an
officer duly authorized thereby, shall have taken such action,
pursuant to the terms of the Subordinated Indenture, as may be
necessary to fix and determine the terms of the Subordinated
Debentures, and the Subordinated Debentures shall have been
issued and delivered in accordance with the terms and provisions
of the Subordinated Indenture.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of Texas. As to all matters
of Texas law, we have with your consent relied upon an opinion of
even date herewith addressed to you by Worsham, Forsythe &
Wooldridge, L.L.P. of Dallas, Texas.
We confirm our opinion as set forth under the caption
"Certain United States Federal Income Tax Consequences Relating
To The Preferred Trust Securities" in the prospectus constituting
a part of the Registration Statement.
We hereby consent to the use of this opinion as an
exhibit to the Registration Statement and to the use of our name
as counsel in the Registration Statement.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
Exhibit 5(c)
Richards, Layton & Finger
A Professional Association
One Rodney Square, P.O. Box 551
Wilmington, Delaware 19899
January 6, 1998
ENSERCH Corporation
ENSERCH Capital I
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Re: ENSERCH Capital I
-----------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for ENSERCH
Corporation, a Texas corporation ("ENSERCH"), and ENSERCH Capital
I, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. At your request, this opinion is
being furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
December 18, 1997 (the "Certificate"), as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary
of State") on December 18, 1997;
(b) The Trust Agreement of the Trust, dated as of
December 17, 1997, among ENSERCH and the trustees of the Trust
named therein;
(c) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the
"Prospectus"), relating to undivided beneficial interests in the
assets of the Trust (each, a "Security" and collectively, the
"Securities"), as proposed to be filed by ENSERCH and the Trust
with the Securities and Exchange Commission on or about January
6, 1998;
(d) A form of Amended and Restated Trust Agreement of
the Trust (including Exhibits A, B and D thereto) (the "Trust
Agreement"), to be entered into among ENSERCH, the trustees of
the Trust named therein, and the holders, from time to time, of
undivided beneficial interests in the assets of the Trust, filed
as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust,
dated January 6, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (e) above. In particular, we have not reviewed any
document (other than the documents listed in paragraphs (a)
through (e) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein.
We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the
statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed
to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of
all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that
the Trust Agreement constitutes the entire agreement among the
parties thereto with respect to the subject matter thereof,
including with respect to the creation, operation and termination
of the Trust, and that the Trust Agreement and the Certificate
are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may
be, and valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the
legal capacity of natural persons who are signatories to the
documents examined by us, (iv) that each of the parties to the
documents examined by us has the power and authority to execute
and deliver, and to perform its obligations, under such documents,
(v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each
Person to whom a Security is to be issued by the Trust
(collectively, the "Security Holders") of a certificate in the
form attached as Exhibit D to the Trust Agreement evidencing
ownership of such Security in the name of such Person
and the payment for the Security acquired by it, in accordance
with the Trust Agreement and the Registration Statement, and
(vii) that the Securities are issued and sold to the Security
Holders in accordance with the Trust Agreement and the
Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act.
2. The Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of
the Trust.
3. The Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State
of Delaware. We note that the Security Holders may be obligated
to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the
Registration Statement. In addition, we hereby consent to the
use of our name under the heading "Experts and Legality" in the
Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent
is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and
Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or
quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/BJ
EXHIBIT 12
ENSERCH CORPORATION AND SUBSIDIARY COMPANIES
(A WHOLLY OWNED SUBSIDIARY OF TEXAS UTILITIES COMPANY)
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED DIVIDENDS
<TABLE>
<CAPTION>
Adjusted (1) Historical (1)
----------------------- -------------------
Period From
Period From January 1,
Nine Acquisition 1997
Months Ended Year Ended Date to through
Sept. 30 Dec. 31 Sept. 30 Acquisition
1997 1996 1997(1) Date (1)
------------ --------- --------- ---------
(In thousands except ratios)
<S> <C> <C> <C> <C>
EARNINGS:
Income (loss) from
continuing operations
before extraordinary
items $(14,384) $ 1,395 $(13,778) $(15,377)
Add: Equity in net
losses (income) of
less-than 50% owned
affiliates 792 3,821 60 732
Dividends received from
less-than 50% owned
affiliates 222 253 44 178
Total federal income
taxes (4,020) 13,124 (6,198) (4,612)
Fixed charges (see
detail below) 57,981 77,517 13,183 45,021
Amortization of
previously capitalized
interest 280 334 63 217
-------- ------- -------- --------
Total earnings(2) $ 40,871 $96,444 $ (6,626) $ 26,159
======== ======= ======== ========
FIXED CHARGES:
Interest expense $ 57,372 $ 76,317 $ 13,058 $ 44,537
Rentals representative
of the interest factor 609 1,200 125 484
-------- -------- -------- --------
Fixed charges deducted
from earnings 57,981 77,517 13,183 45,021
Capitalized interest 146 63 15 131
Total fixed
charges 58,127 77,580 13,198 45,152
Preferred dividends
adjusted for pretax
earnings coverage (3) 22,941 18,246 2,722 8,742
-------- -------- -------- --------
Combined fixed
charges and
preferred $ 81,068 $ 95,826 $ 15,920 $ 53,894
======== ======== ======== ========
RATIO OF EARNINGS TO
FIXED CHARGES (4) 0.70 1.24 (.50) .58
======== ======== ======== ========
RATIO OF EARNINGS TO
COMBINED FIXED CHARGES
AND PREFERRED DIVIDENDS(5) 0.50 1.01 (.42) .49
======== ======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
Historical(1)
Year Ended December 31
------------------------------------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
(In thousands except ratios)
<S> <C> <C> <C> <C> <C>
EARNINGS:
Income (loss) from
continuing
operations before
extraordinary items $ 22,698 $ 13,053 $ 81,452 $(16,037) $ 1,836
Add: Equity in net
losses (income) of
less-than 50% owned
affiliates 3,821 821 406 (385) 36
Dividends received
from less-than 50%
owned affiliates 253 340 788 766 123
Total federal income
taxes 15,738 921 (68,737) 6,636 (2,184)
Fixed charges (see
detail below) 110,117 89,361 72,222 81,736 99,288
Amortization of
previously
capitalized interest 16,589 9,871 7,441 7,707 6,547
-------- -------- -------- -------- --------
Total earnings(2) $169,216 $114,367 $93,572 $80,423 $105,646
======== ======== ======= ======== ========
FIXED CHARGES:
Interest expense $94,870 $83,324 $69,310 $77,720 $ 94,475
Rentals
representative of
the interest factor 15,247 6,037 2,912 4,016 4,813
-------- -------- -------- -------- --------
Fixed charges
deducted from
earnings 110,117 89,361 72,222 81,736 99,288
Capitalized interest 7,081 18,789 13,473 7,006 6,578
-------- -------- -------- -------- --------
Total fixed
charges 117,198 108,150 85,695 88,742 105,866
Preferred dividends
adjusted for pretax
earnings coverage(3) 19,201 12,515 11,619 12,663 12,952
-------- -------- -------- -------- --------
Combined fixed
charges and
preferred
dividends $136,399 $120,665 $97,314 $101,405 $118,818
======== ======== ======= ======== ========
RATIO OF EARNINGS TO
FIXED CHARGES(4) 1.44 1.06 1.09 0.91 1.00
======= ======= ======= ======== ======
RATIO OF EARNINGS TO
COMBINED FIXED
CHARGES AND
PREFERRED DIVIDENDS(5) 1.24 0.95 0.96 0.79 0.89
======= ======= ======= ======== ======
</TABLE>
<PAGE>
(1) On August 5, 1997, ENSERCH became a wholly owned subsidiary of
Texas Utilities Company (TUC) (Acquisition Date). Immediately
prior to ENSERCH's merger with TUC, Enserch Exploration, Inc.
(EEX), and Lone Star Energy Plan Operations, Inc. (LSEPO) were
merged to form a new company (New EEX) and ENSERCH distributed
to its common shareholders its ownership interest in these
businesses. TUC accounted for its acquisition of ENSERCH as a
purchase and purchase accounting adjustments, including
amortization of goodwill, have been reflected in the computation
of the ratios of earnings to fixed charges and ratios of
earnings to combined fixed charges and preferred dividends of
ENSERCH for the periods subsequent to August 5, 1997. Historical
ratios of earnings to fixed charges and ratio of earnings to
combined fixed charges and preferred dividends for the periods
ended before August 5, 1997, were prepared using ENSERCH's
historical basis of accounting. Amounts for the period from
January 1, 1997 to Acquisition Date have been restated to
reflect EEX and LSEPO as discontinued operations. Ratios for
years prior to 1997 were prepared using ENSERCH's historical
basis of accounting.
Adjusted - Ratios are based on unaudited "pro forma" financial
information included in a Form 8-K dated January 6, 1998,
incorporated by reference elsewhere in this Registration
Statement, which gives effect to: (1) the distribution by
ENSERCH to its common shareholders of its interest in EEX and
LSEPO; and (2) push down accounting of purchase accounting
adjustments from the TUC merger, all on a pro forma basis as if
the events had occurred at the beginning of each period
presented.
(2) "Earnings" represent the aggregate of (a) income from continuing
operations before extraordinary items, (b) income taxes, (c)
amortization of previously capitalized interest and (d) fixed
charges deducted from earnings, on a total enterprise basis.
"Fixed Charges" represent interest expense, capitalized interest
and the portion of rental expense representative of the interest
factor.
(3) The preferred stock dividend requirements are assumed to be
equal to the pretax earnings which would be required to cover
such dividend requirements. The amount of such pretax earnings
required to cover preferred stock dividends was computed using
tax rates for the applicable period. For the Adjusted periods,
the effective tax rates used exclude the impact of "pro forma"
goodwill amortization on pretax earnings because of the abnormal
impact on effective tax rates of nondeductible goodwill
amortization. For the Historical years ended December
31, 1994, 1993 and 1992 the Corporation's effective tax rate was
a negative percentage of the pretax income or loss. Therefore,
for these years only, the preferred stock dividends have not
been adjusted to a pretax equivalent since such an adjustment
would have been antidilutive to the ratio of earnings to fixed
charges and preferred dividends.
(4) For the Adjusted nine months ended September 30, 1997, fixed
charges exceeded earnings by $17.3 million. For the Historical
periods from Acquisition Date to September 30, 1997, from
January 1, 1997 to Acquisition Date and for the years ended
December 31, 1993 and 1992, fixed charges exceeded earnings by
$19.8 million, $19.0 million, $8.3 million and $.2 million,
respectively.
(5) For the Adjusted nine months ended September 30, 1997 combined
fixed charges and preferred dividends exceeded earnings by $40.2
million. For the Historical period from Acquisition Date to
September 30, 1997, from January 1, 1997 to Acquisition Date and
for the years ended December 31, 1995, 1994, 1993 and 1992,
combined fixed charges and preferred dividends exceeded earnings
by $22.5 million, $27.7 million, $6.3 million, $3.7 million,
$21.0 million and $13.2 million, respectively.
EXHIBIT 15
ENSERCH Corporation:
We have made a review, in accordance with standards established
by the American Institute of Certified Public Accountants, of the
unaudited interim condensed consolidated financial information of
ENSERCH Corporation and subsidiary companies included in your
Quarterly Reports on Form 10-Q for the quarters ended March 31,
1997; June 30, 1997 and September 30, 1997, as indicated in our
reports dated May 7, 1997; August 13, 1997 and November 12, 1997;
because we did not perform an audit, we expressed no opinion on
that information.
We are aware that our reports referred to above, which were
included in your Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997; June 30, 1997 and September 30, 1997, are
being incorporated by reference in this Registration Statement.
We also are aware that the aforementioned reports, pursuant to
Rule 436(c) under the Securities Act of 1933, are not considered
a part of the Registration Statement prepared or certified by an
accountant or a report prepared or certified by an accountant
within the meaning of Sections 7 and 11 of that Act.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Dallas, Texas
January 5, 1998
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of ENSERCH Corporation and ENSERCH Capital I on Form S-
3 of our report dated February 10, 1997, appearing in the ENSERCH
Corporation Annual Report on Form 10-K for the year ended
December 31, 1996, and to the reference to us under the heading
"Experts and Legality" which is part of this Registration
Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Dallas, Texas
January 5, 1998
Exhibit 25(a)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
ENSERCH CORPORATION
(Exact name of obligor as specified in its charter)
Texas 75-2527254
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Energy Plaza, 1601 Bryan Street
Dallas, Texas 75201
(Address of principal executive offices) (Zip code)
-----------------
ENSERCH CORPORATION DEBT SECURITIES*
(Title of the indenture securities)
- --------
* Specific title(s) to be determined in connection with sale(s)
of Debt Securities.
<PAGE>
ITEM 1. GENERAL INFORMATION.**
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance
Corporation 550 17th Street, N.W., Washington, D.C. 20429
New York Clearing House
Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the
"Act") and Rule 24 of the Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
2. - A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- --------
** Pursuant to General Instruction B, the Trustee has responded
only to Items 1, 2 and 16 of this form since to the best of the
knowledge of the Trustee the obligor is not in default under any
indenture under which the Trustee is a trustee.
<PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a
responsive answer to Item 2, the answer to said Item is based on
incomplete information.
Item 2 may, however, be considered as correct unless amended by
an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized,
all in The City of New York, and State of New York, on the day of
December, 1997.
THE BANK OF NEW YORK
By: WALTER N. GITLIN
----------------------
Walter N. Gitlin
Vice President
- 2 -
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal
Reserve System, at the close of business June 30, 1997, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ ------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin......................................... $ 7,769,502
Interest-bearing balances..................................... 1,472,524
Securities:
Held-to-maturity securities.................................... 1,080,234
Available-for-sale securities................................... 3,046,199
Federal funds sold and Securities
purchased under agreements to resell:......................... 3,193,800
Loans and lease financing
receivables:
Loans and leases, net of unearned
income........................................... 35,352,045
LESS: Allowance for loan and
lease losses...................................... 625,042
LESS: Allocated transfer risk
reserve........................................... 429
Loans and leases, net of unearned
income, allowance, and reserve............................... 34,726,574
Assets held in trading accounts................................... 1,611,096
Premises and fixed assets (including
capitalized leases)............................................. 676,729
Other real estate owned........................................... 22,460
Investments in unconsolidated subsid-
iaries and associated companies................................. 209,959
Customers' liability to this bank on
acceptances outstanding....................................... 1,357,731
Intangible assets................................................. 720,883
Other assets....................................................... 1,627,267
-----------
Total assets...................................................... $57,514,958
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................ $26,875,596
Noninterest-bearing................................ 11,213,657
Interest-bearing................................... 15,661,939
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................... 16,334,270
Noninterest-bearing................................ 596,369
Interest-bearing................................... 15,737,901
Federal funds purchased and Securities
sold under agreements to repurchase ............................ 1,583,157
Demand notes issued to the U.S.
Treasury....................................................... 303,000
Trading liabilities.............................................. 1,308,173
Other borrowed money:
With remaining maturity of one year or less.................... 2,383,570
With remaining maturity of more than
one year through three years ................................. 0
With remaining maturity of more than
three years.................................................. 20,679
Bank's liability on acceptances
executed and outstanding....................................... 1,377,244
Subordinated notes and debentures................................ 1,018,940
Other liabilities................................................ 1,732,792
----------
Total liabilities................................................ 52,937,421
----------
EQUITY CAPITAL
- --------------
Common stock..................................................... 1,135,284
Surplus.......................................................... 731,319
Undivided profits and capital
reserves....................................................... 2,721,258
Net unrealized holding gains (losses)
on available-for-sale securities............................... 1,948
Cumulative foreign currency
translation adjustments........................................ (12,272)
-----------
Total equity capital............................................. 4,577,537
-----------
Total liabilities and equity capital............................. $57,514,958
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of Condition
has been prepared in conformance with the instructions issued by the
Board of Governors of the Federal Reserve System and is true to the
best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to
the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal
Reserve System and is true and correct.
Thomas A. Renyi )
J. Carter Bacot ) Directors
Alan R. Griffith )
Exhibit 25(b)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
ENSERCH CAPITAL I
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Energy Plaza, 1601 Bryan Street
Dallas, Texas 75201
(Address of principal executive offices) (Zip code)
-----------------
ENSERCH CAPITAL I
TRUST SECURITIES*
(Title of the indenture securities)
- ---------------
*Specific title to be determined in connection with sale of
ENSERCH Capital I Trust Securities.
<PAGE>
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance
Corporation 550 17th Street, N.W., Washington, D.C. 20429
New York Clearing House
Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the
"Act") and Rule 24 of the Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- --------
* Pursuant to General Instruction B, the Trustee has responded
only to Items 1, 2 and 16 of this form since to the best of the
knowledge of the Trustee the obligor is not in default under any
indenture under which the Trustee is a trustee.
<PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a
responsive answer to Item 2, the answer to said Item is based on
incomplete information.
Item 2 may, however, be considered as correct unless amended by
an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized,
all in The City of New York, and State of New York, on the day of
December, 1997.
THE BANK OF NEW YORK
By: WALTER N. GITLIN
----------------------------
Walter N. Gitlin
Vice President
- 2 -
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal
Reserve System, at the close of business June 30, 1997, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ ------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin......................................... $ 7,769,502
Interest-bearing balances..................................... 1,472,524
Securities:
Held-to-maturity securities.................................... 1,080,234
Available-for-sale securities................................... 3,046,199
Federal funds sold and Securities
purchased under agreements to resell:......................... 3,193,800
Loans and lease financing
receivables:
Loans and leases, net of unearned
income........................................... 35,352,045
LESS: Allowance for loan and
lease losses...................................... 625,042
LESS: Allocated transfer risk
reserve........................................... 429
Loans and leases, net of unearned
income, allowance, and reserve............................... 34,726,574
Assets held in trading accounts................................... 1,611,096
Premises and fixed assets (including
capitalized leases)............................................. 676,729
Other real estate owned........................................... 22,460
Investments in unconsolidated subsid-
iaries and associated companies................................. 209,959
Customers' liability to this bank on
acceptances outstanding....................................... 1,357,731
Intangible assets................................................. 720,883
Other assets....................................................... 1,627,267
-----------
Total assets...................................................... $57,514,958
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................ $26,875,596
Noninterest-bearing................................ 11,213,657
Interest-bearing................................... 15,661,939
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................... 16,334,270
Noninterest-bearing................................ 596,369
Interest-bearing................................... 15,737,901
Federal funds purchased and Securities
sold under agreements to repurchase ............................ 1,583,157
Demand notes issued to the U.S.
Treasury....................................................... 303,000
Trading liabilities.............................................. 1,308,173
Other borrowed money:
With remaining maturity of one year or less.................... 2,383,570
With remaining maturity of more than
one year through three years ................................. 0
With remaining maturity of more than
three years.................................................. 20,679
Bank's liability on acceptances
executed and outstanding....................................... 1,377,244
Subordinated notes and debentures................................ 1,018,940
Other liabilities................................................ 1,732,792
----------
Total liabilities................................................ 52,937,421
----------
EQUITY CAPITAL
Common stock..................................................... 1,135,284
Surplus.......................................................... 731,319
Undivided profits and capital
reserves....................................................... 2,721,258
Net unrealized holding gains (losses)
on available-for-sale securities............................... 1,948
Cumulative foreign currency
translation adjustments........................................ (12,272)
-----------
Total equity capital............................................. 4,577,537
-----------
Total liabilities and equity capital............................. $57,514,958
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of Condition
has been prepared in conformance with the instructions issued by the
Board of Governors of the Federal Reserve System and is true to the
best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to
the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal
Reserve System and is true and correct.
Thomas A. Renyi )
J. Carter Bacot ) Directors
Alan R. Griffith )
Exhibit 25(c)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
ENSERCH CORPORATION
(Exact name of obligor as specified in its charter)
Texas 75-2527254
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Energy Plaza, 1601 Bryan Street
Dallas, Texas 75201
(Address of principal executive offices) (Zip code)
-----------------
ENSERCH CORPORATION JUNIOR SUBORDINATED DEBENTURES*
(Title of the indenture securities)
- ------------------
*Specific title(s) to be determined in connection with sale(s) of
Junior Subordinated Debentures.
<PAGE>
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance
Corporation 550 17th Street, N.W., Washington, D.C. 20429
New York Clearing House
Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the
"Act") and Rule 24 of the Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- --------
* Pursuant to General Instruction B, the Trustee has responded
only to Items 1, 2 and 16 of this form since to the best of the
knowledge of the Trustee the obligor is not in default under any
indenture under which the Trustee is a trustee.
<PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a
responsive answer to Item 2, the answer to said Item is based on
incomplete information.
Item 2 may, however, be considered as correct unless amended by
an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized,
all in The City of New York, and State of New York, on the day of
December, 1997.
THE BANK OF NEW YORK
By: WALTER N. GITLIN
-------------------
Walter N. Gitlin
Vice President
- 2 -
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal
Reserve System, at the close of business June 30, 1997, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ ------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin......................................... $ 7,769,502
Interest-bearing balances..................................... 1,472,524
Securities:
Held-to-maturity securities.................................... 1,080,234
Available-for-sale securities................................... 3,046,199
Federal funds sold and Securities
purchased under agreements to resell:......................... 3,193,800
Loans and lease financing
receivables:
Loans and leases, net of unearned
income........................................... 35,352,045
LESS: Allowance for loan and
lease losses...................................... 625,042
LESS: Allocated transfer risk
reserve........................................... 429
Loans and leases, net of unearned
income, allowance, and reserve............................... 34,726,574
Assets held in trading accounts................................... 1,611,096
Premises and fixed assets (including
capitalized leases)............................................. 676,729
Other real estate owned........................................... 22,460
Investments in unconsolidated subsid-
iaries and associated companies................................. 209,959
Customers' liability to this bank on
acceptances outstanding....................................... 1,357,731
Intangible assets................................................. 720,883
Other assets....................................................... 1,627,267
-----------
Total assets...................................................... $57,514,958
===========
<PAGE>
EXHIBIT 7 (Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................ $26,875,596
Noninterest-bearing................................ 11,213,657
Interest-bearing................................... 15,661,939
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................... 16,334,270
Noninterest-bearing................................ 596,369
Interest-bearing................................... 15,737,901
Federal funds purchased and Securities
sold under agreements to repurchase ............................ 1,583,157
Demand notes issued to the U.S.
Treasury....................................................... 303,000
Trading liabilities.............................................. 1,308,173
Other borrowed money:
With remaining maturity of one year or less.................... 2,383,570
With remaining maturity of more than
one year through three years ................................. 0
With remaining maturity of more than
three years.................................................. 20,679
Bank's liability on acceptances
executed and outstanding....................................... 1,377,244
Subordinated notes and debentures................................ 1,018,940
Other liabilities................................................ 1,732,792
----------
Total liabilities................................................ 52,937,421
----------
EQUITY CAPITAL
- --------------
Common stock..................................................... 1,135,284
Surplus.......................................................... 731,319
Undivided profits and capital
reserves....................................................... 2,721,258
Net unrealized holding gains (losses)
on available-for-sale securities............................... 1,948
Cumulative foreign currency
translation adjustments........................................ (12,272)
-----------
Total equity capital............................................. 4,577,537
-----------
Total liabilities and equity capital............................. $57,514,958
===========
<PAGE>
EXHIBIT 7 (Page 3 of 3)
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of Condition
has been prepared in conformance with the instructions issued by the
Board of Governors of the Federal Reserve System and is true to the
best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to
the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal
Reserve System and is true and correct.
Thomas A. Renyi )
J. Carter Bacot ) Directors
Alan R. Griffith )
Exhibit 25(d)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
ENSERCH CORPORATION
(Exact name of obligor as specified in its charter)
Texas 75-2527254
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
ENSERCH Corporation
Energy Plaza, 1601 Bryan Street
Dallas, Texas 75201
(Address of principal executive offices) (Zip code)
-----------------
ENSERCH CORPORATION GUARANTEE WITH RESPECT TO
ENSERCH CAPITAL I
TRUST SECURITIES*
(Title of the indenture securities)
*Specific title to be determined in connection with sale of
ENSERCH Capital I Trust Securities.
<PAGE>
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance
Corporation 550 17th Street, N.W., Washington, D.C. 20429
New York Clearing House
Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the
"Act") and Rule 24 of the Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- --------
* Pursuant to General Instruction B, the Trustee has responded
only to Items 1, 2 and 16 of this form since to the best of the
knowledge of the Trustee the obligor is not in default under any
indenture under which the Trustee is a trustee.
<PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a
responsive answer to Item 2, the answer to said Item is based on
incomplete information.
Item 2 may, however, be considered as correct unless amended by
an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized,
all in The City of New York, and State of New York, on the day of
December, 1997.
THE BANK OF NEW YORK
By: WALTER N. GITLIN
------------------------
Walter N. Gitlin
Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal
Reserve System, at the close of business June 30, 1997, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ ------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin......................................... $ 7,769,502
Interest-bearing balances..................................... 1,472,524
Securities:
Held-to-maturity securities.................................... 1,080,234
Available-for-sale securities................................... 3,046,199
Federal funds sold and Securities
purchased under agreements to resell:......................... 3,193,800
Loans and lease financing
receivables:
Loans and leases, net of unearned
income........................................... 35,352,045
LESS: Allowance for loan and
lease losses...................................... 625,042
LESS: Allocated transfer risk
reserve........................................... 429
Loans and leases, net of unearned
income, allowance, and reserve............................... 34,726,574
Assets held in trading accounts................................... 1,611,096
Premises and fixed assets (including
capitalized leases)............................................. 676,729
Other real estate owned........................................... 22,460
Investments in unconsolidated subsid-
iaries and associated companies................................. 209,959
Customers' liability to this bank on
acceptances outstanding....................................... 1,357,731
Intangible assets................................................. 720,883
Other assets....................................................... 1,627,267
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Total assets...................................................... $57,514,958
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<PAGE>
EXHIBIT 7 (Page 2 of 3)
LIABILITIES
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Deposits:
In domestic offices............................................ $26,875,596
Noninterest-bearing................................ 11,213,657
Interest-bearing................................... 15,661,939
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................... 16,334,270
Noninterest-bearing................................ 596,369
Interest-bearing................................... 15,737,901
Federal funds purchased and Securities
sold under agreements to repurchase ............................ 1,583,157
Demand notes issued to the U.S.
Treasury....................................................... 303,000
Trading liabilities.............................................. 1,308,173
Other borrowed money:
With remaining maturity of one year or less.................... 2,383,570
With remaining maturity of more than
one year through three years ................................. 0
With remaining maturity of more than
three years.................................................. 20,679
Bank's liability on acceptances
executed and outstanding....................................... 1,377,244
Subordinated notes and debentures................................ 1,018,940
Other liabilities................................................ 1,732,792
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Total liabilities................................................ 52,937,421
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EQUITY CAPITAL
Common stock..................................................... 1,135,284
Surplus.......................................................... 731,319
Undivided profits and capital
reserves....................................................... 2,721,258
Net unrealized holding gains (losses)
on available-for-sale securities............................... 1,948
Cumulative foreign currency
translation adjustments........................................ (12,272)
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Total equity capital............................................. 4,577,537
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Total liabilities and equity capital............................. $57,514,958
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<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of Condition
has been prepared in conformance with the instructions issued by the
Board of Governors of the Federal Reserve System and is true to the
best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to
the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal
Reserve System and is true and correct.
Thomas A. Renyi )
J. Carter Bacot ) Directors
Alan R. Griffith )
