Registration Nos. 33-63031 and 33-63031-01
========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-4
AMENDMENT NO. 1
TO
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
TEXAS UTILITIES ELECTRIC COMPANY
(Exact name of registrant as specified in its charter)
Texas 4911 75-1837355
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or Industrial Identification
No.)
organization) Classification
Code Number)
TU ELECTRIC CAPITAL I
(Exact name of registrant as specified in its charter)
Delaware To Be Applied For
(State of incorporation (I.R.S. Employer or
or organization) Identification No.)
1601 Bryan Street
Dallas, Texas 75201
(214) 812-4600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
ROBERT A. WOOLDRIDGE, Esq. PETER B. TINKHAM ROBERT J. REGER, JR.,
Worsham, Forsythe & Texas Utilities Esq.
Wooldridge, L.L.P. Electric Company Reid & Priest LLP
1601 Bryan Street Secretary 40 West 57th Street
Dallas, Texas 1601 Bryan Street New York, New York
75201 Dallas, Texas 10019
(214) 979-3000 75201 (212) 603-2000
(214) 812-4600
(Names and addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
---------------------
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 10004-1490
(212) 858-1000
========================================================================
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 21. Exhibits.
Previously Filed* ______________________
With
File As
Exhibit Number Exhibit _______ _______ _______
** 1(a) -- Form of Dealer Manager
Agreement.
3(a) 0-11442 3(a) -- Restated Articles of
Incorporation of the Company
Form 10-K
1993
3(b) 33-64694 4(c) -- Bylaws of the Company, as
amended.
***3(c) -- Trust Agreement relating to
the Preferred Securities.
4(a) -- Form of Amended and Restated
Trust Agreement relating to
the Preferred Securities.
4(b) -- Form of Indenture relating to
the Junior Subordinated
Debentures.
4(c) -- Form of Guarantee Agreement.
4(d) -- Form of Agreement as to
Expenses and Liabilities.
4(e) -- Form of Officers' Certificate
establishing Debentures.
4(f) -- Form of Preferred Securities.
** 4(g) -- Form of Letter of Transmittal
5(a) -- Opinion of Worsham, Forsythe &
Wooldridge, L.L.P., General
Counsel for the Company.
5(b)
and 8 -- Opinion of Reid & Priest LLP,
of counsel to the Company.
5(c) -- Opinion of Richards, Layton &
Finger, Special Delaware
Counsel to the Company and TU
Electric Capital.
12(a) -- Computation of Ratio of
Earnings to Fixed Charges of
the Company.
12(b) -- Computation of Ratio of
Earnings to 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 are contained
in Exhibits 5(a), 5(b) and
5(c), respectively.
***24 -- Power of Attorney.
***25(a) -- Statement on Form T-1 of The
Bank of New York.
***25(b) -- Statement on Form T-1 of The
Bank of New York.
***25(c) -- Statement on Form T-1 of The
Bank of New York.
**99(a) -- Form of Exchange Agent
Agreement.
**99(b) -- Form of letter to Brokers,
Dealers, Commercial Banks,
Trust Companies and Other
Nominees.
**99(c) -- Form of letter from Brokers,
Dealers, Commercial Banks,
Trust Companies and Other
Nominees to their clients.
**99(d) -- Form of Notice of Guaranteed
Delivery.
**99(e) -- Form of letter to Holders of
Depositary Shares.
**99(f) -- Form of Guidelines for
Certification of Taxpayer
Identification Number on
Substitute Form W-9.
---------------------
*Incorporated herein by reference.
**To be filed by amendment.
***Filed with Registration Nos. 33-63031 and 33-63031-01
II-3
<PAGE>
SIGNATURES
The registrant has duly caused this amendment to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, and State of New York, on the 18th
day of October, 1995.
Texas Utilities Electric Company
By /s/ Robert J. Reger, Jr.
----------------------------
Robert J. Reger, Jr.
(Attorney-in-Fact)
This amendment to the registration statement has been signed below by
the following persons in the capacities and on the date indicated.
Signatures Title Date
---------- ----- ----
Erle Nye*
------------------------ Principal Executive October 18, 1995
(Erle Nye, Chairman of Officer and Director
the Board and Chief
Executive)
H. Dan Farell*
------------------------- Principal Financial October 18, 1995
(H. Dan Farell, Senior Officer and Director
Vice President)
Marc D. Moseley*
------------------------- Principal Accounting October 18, 1995
(Marc D. Moseley, Officer
Controller)
T. L. Baker Director* October 18, 1995
J. S. Farrington Director* October 18, 1995
H. Jarrell Gibbs Director* October 18, 1995
John U. Martin Director* October 18, 1995
Michael D. Spence Director* October 18, 1995
W. M. Taylor Director* October 18, 1995
E. L. Watson Director* October 18, 1995
*By: /s/ Robert J. Reger, Jr.
------------------------------- October 18, 1995
Robert J. Reger. Jr.
(Attorney-in-Fact)
SIGNATURES
The registrant has duly caused this amendment to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, and State of New York, on the 18th
day of October 1995.
TU Electric Capital I
By: /s/Robert J. Reger, Jr.
------------------------------------
Robert J. Reger, Jr.
(Attorney-in-Fact)
EXHIBIT INDEX
Exhibit
-------
4(a) -- Form of Amended and Restated Trust Agreement
relating to the Preferred Securities.
4(b) -- Form of Indenture relating to the Junior
Subordinated Debentures.
4(c) -- Form of Guarantee Agreement.
4(d) -- Form of Agreement as to Expenses and Liabilities.
4(e) -- Form of Officers' Certificate establishing
Debentures.
4(f) -- Form of Preferred Securities.
5(a) -- Opinion of Worsham, Forsythe & Wooldridge, L.L.P.,
General Counsel for the Company.
5(b)
and 8 -- Opinion of Reid & Priest LLP, of counsel to the
Company.
5(c) -- Opinion of Richards, Layton & Finger, Special
Delaware Counsel to the Company and TU Electric
Capital.
12(a) -- Computation of Ratio of Earnings to Fixed Charges of
the Company.
12(b) -- Computation of Ratio of Earnings to Fixed Charges
and Preferred Dividends of the Company.
23(b) -- Consents of Worsham, Forsythe & Wooldridge, L.L.P.,
Reid & Priest LLP and Richards, Layton & Finger are
contained in Exhibits 5(a), 5(b) and 5(c),
respectively.
Exhibit 4(a)
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AMENDED AND RESTATED
TRUST AGREEMENT
between
TEXAS UTILITIES ELECTRIC COMPANY, as Depositor
and
THE BANK OF NEW YORK
THE BANK OF NEW YORK (DELAWARE),
Wayne Patterson
Cathryn C. Hulen
and
Michael Perkins, as Trustees
Dated as of _________ __, 1995
TU ELECTRIC CAPITAL I
=========================================================================
<PAGE>
TU Electric Capital I
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 . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.02. Office of the Delaware Trustee;
Principal Place of Business . . . . . . . . . . 10
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses . . . . . . . . . . . . 11
Section 2.04. Issuance of the Preferred Securities . . . . . . 11
Section 2.05. Subscription and Purchase of Debentures;
Issuance of the Common Securities . . . . . . . 11
Section 2.06. Declaration of Trust; Appointment of Additional
Administrative Trustees . . . . . . . . . . . . 11
Section 2.07. Authorization to Enter into Certain
Transactions . . . . . . . . . . . . . . . . . 12
Section 2.08. Assets of Trust . . . . . . . . . . . . . . . . . 15
Section 2.09. Title to Trust Property . . . . . . . . . . . . . 15
ARTICLE III.
Payment Account
Section 3.01. Payment Account . . . . . . . . . . . . . . . . . 16
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions . . . . . . . . . . . . . . . . . . 16
Section 4.02. Redemption . . . . . . . . . . . . . . . . . . . 17
Section 4.03. Subordination of Common Securities . . . . . . . 19
Section 4.04. Payment Procedures . . . . . . . . . . . . . . . 20
Section 4.05. Tax Returns and Reports . . . . . . . . . . . . . 20
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership . . . . . . . . . . . . . . . . 20
Section 5.02. The Trust Securities Certificates . . . . . . . . 20
Section 5.03. Execution and Delivery of Trust Securities
Certificates . . . . . . . . . . . . . . . . . 21
Section 5.04. Registration of Transfer and Exchange of
Preferred Securities Certificates . . . . . . . 21
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates . . . . . . . . . . . . 22
Section 5.06. Persons Deemed Securityholders . . . . . . . . . 22
Section 5.07. Access to List of Securityholders' Names
and Addresses . . . . . . . . . . . . . . . . . 22
Section 5.08. Maintenance of Office or Agency . . . . . . . . . 23
Section 5.09. Appointment of Paying Agent . . . . . . . . . . . 23
Section 5.10. Ownership of Common Securities by Depositor . . . 23
Section 5.11. Definitive Preferred Securities Certificates . . 24
Section 5.12. Book-Entry System . . . . . . . . . . . . . . . . 24
Section 5.13. Rights of Securityholders . . . . . . . . . . . . 25
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights . . . . . . . . . . 25
Section 6.02. Notice of Meetings . . . . . . . . . . . . . . . 26
Section 6.03. Meetings of Holders of Preferred Securities . . . 26
Section 6.04. Voting Rights . . . . . . . . . . . . . . . . . . 27
Section 6.05. Proxies, etc. . . . . . . . . . . . . . . . . . . 27
Section 6.06. Securityholder Action by Written Consent . . . . 27
Section 6.07. Record Date for Voting and Other Purposes . . . . 27
Section 6.08. Acts of Securityholders . . . . . . . . . . . . . 27
Section 6.09. Inspection of Records . . . . . . . . . . . . . . 28
ARTICLE VII.
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee . . . . . . . . . . . . . . . . 29
Section 7.02. Delaware Trustee . . . . . . . . . . . . . . . . 29
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities . . . . . . . 30
Section 8.02. Notice of Defaults . . . . . . . . . . . . . . . 31
Section 8.03. Certain Rights of Property Trustee . . . . . . . 31
Section 8.04. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . 34
Section 8.05. May Hold Securities . . . . . . . . . . . . . . . 34
Section 8.07. Certain Trustees Required; Eligibility . . . . . 35
Section 8.08. Conflicting Interests . . . . . . . . . . . . . . 36
Section 8.09. Co-Trustees and Separate Trustee . . . . . . . . 36
Section 8.10. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . . . . 38
Section 8.11. Acceptance of Appointment by Successor . . . . . 39
Section 8.12. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . 40
Section 8.13. Preferential Collection of Claims
Against Depositor or Trust . . . . . . . . . . 40
Section 8.14. Reports by Property Trustee . . . . . . . . . . . 40
Section 8.15. Reports to the Property Trustee . . . . . . . . . 41
Section 8.16. Evidence of Compliance With Conditions
Precedent . . . . . . . . . . . . . . . . . . . 41
Section 8.17. Number of Trustees. . . . . . . . . . . . . . . . 41
Section 8.18. Delegation of Power. . . . . . . . . . . . . . . 42
Section 8.19. Fiduciary Duty . . . . . . . . . . . . . . . . . 42
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date . . . . . . . . 43
Section 9.02. Early Termination . . . . . . . . . . . . . . . . 43
Section 9.03. Termination . . . . . . . . . . . . . . . . . . . 44
Section 9.04. Liquidation . . . . . . . . . . . . . . . . . . . 44
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and Assumption of
Obligations . . . . . . . . . . . . . . . . . . 46
Section 10.02. Limitation of Rights of Securityholders . . . . . 46
Section 10.03. Amendment . . . . . . . . . . . . . . . . . . . . 46
Section 10.04. Separability . . . . . . . . . . . . . . . . . . 47
Section 10.05. Governing Law . . . . . . . . . . . . . . . . . . 48
Section 10.06. Successors . . . . . . . . . . . . . . . . . . . 48
Section 10.07. Headings . . . . . . . . . . . . . . . . . . . . 48
Section 10.08. Notice and Demand . . . . . . . . . . . . . . . . 48
Section 10.09. Agreement Not to Petition . . . . . . . . . . . . 48
Section 10.10. Conflict with Trust Indenture Act . . . . . . . 49
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of _______, 1995,
between (i) Texas Utilities Electric Company, a Texas corporation (the
"Depositor"), (ii) The Bank of New York, a banking corporation duly
organized and existing under the laws of New York, as trustee (the
"Property Trustee" and, in its separate capacity and not in its capacity as
Property Trustee, the "Bank"), (iii) The Bank of New York (Delaware), a
banking corporation duly organized under the laws of Delaware, as Delaware
trustee (the "Delaware Trustee") (iv) Wayne Patterson, an individual,
Cathryn C. Hulen, an individual and Michael Perkins, an individual, 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 Wayne Patterson, as the Administrative Trustee, have heretofore
duly declared and established a business trust pursuant to the Delaware
Business Trust Act by the entering into of that certain Trust Agreement,
dated as of September 28, 1995 (the "Original Trust Agreement"), and by the
execution by the Property Trustee, the Delaware Trustee and Wayne
Patterson, as Administrative Trustee and filing with the Secretary of State
of the State of Delaware of the Certificate of Trust, dated September 28,
1995, a copy of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware Trustee
and Wayne Patterson, as Administrative Trustee, desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide
for, among other things, (i) the acquisition by the Trust from the
Depositor of all of the right, title and interest in the Debentures, (ii)
the issuance of the Common Securities by the Trust to the Depositor, (iii)
the issuance of the Preferred Securities by the Trust and (iv) the
appointment of the additional Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of
the other party and for the benefit of the Securityholders, hereby amends
and restates the Original Trust Agreement in its entirety and agrees as
follows:
ARTICLE I.
Defined Terms
Section 1.01. Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Subordinated Indenture) paid by the Depositor
on a Like Amount of Debentures for such period.
"Administrative Trustee" means each of the individuals identified
as an "Administrative Trustee" in the preamble to this Trust Agreement
solely in their capacities as Administrative Trustees of the Trust formed
hereunder and not in their individual capacities, or such trustee's
successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a receiver,
liquidator, assignee, trustee sequestrator or other similar
official of such Person or of any substantial part of its
property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of the consent by it to
the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under Federal bankruptcy law or
any other applicable Federal or State law, or the consent by it
to the filing of such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Person or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors or a duly authorized
committee thereof and to be in full force and effect on the date of such
certification, and delivered to the appropriate Trustee.
"Business Day" means a day other than (x) a Saturday or a Sunday,
(y) a day on which banks in New York, New York are authorized or obligated
by law or executive order to remain closed or (z) a day on which the
Property Trustee's Corporate Trust Office or the Debenture Trustee's
principal corporate trust office is closed for business.
"Certificate of Trust" has the meaning specified in Section
2.07(d).
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Closing Date" means the First Time of Delivery as defined in the
Dealer Manager Agreement, which date is also the date of execution and
delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Common Security" means an undivided beneficial interest in the
Trust having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit C.
"Corporate Trust Office" means the principal office of the
Property Trustee located in New York, New York.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or the
Trust's Affiliates; and (b) any Holder of Trust Securities.
"Dealer Manager Agreement" means the Dealer Manager Agreement,
dated as of ____________, 1995, among the Trust, the Depositor and the
dealer manager named therein.
"Debenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Debenture Issuer" means Texas Utilities Electric Company, a
Texas corporation, in its capacity as issuer of the Debentures.
"Debenture Redemption Date" means "Redemption Date" as defined in
the Subordinated Indenture with respect to the Debentures.
"Debenture Trustee" means The Bank of New York, as trustee under
the Subordinated Indenture.
"Debentures" means the $____________ aggregate principal amount
of the Depositor's ___% Junior Subordinated Debentures, Series A, Due ____,
2030, issued pursuant to the Subordinated Indenture.
"Definitive Preferred Securities Certificates" means Preferred
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.11.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Delaware Trustee" means the banking corporation identified as
the "Delaware Trustee" in the preamble to this Trust Agreement solely in
its capacity as Delaware Trustee of the Trust formed hereunder and not in
its individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement and includes Texas Utilities Electric Company in its
capacity as Holder of the Common Securities.
"Depositary Shares" means the Texas Utilities Electric Company
Depositary Shares, Series A, each representing 1/4 share of $7.50
Cumulative Preferred Stock and Depositary Shares, Series B, each
representing 1/4 share of $7.22 Cumulative Preferred Stock.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section
9.02.
"Exchange" has the meaning specified in Section 2.07(b).
"Exchange Act" has the meaning specified in Section 2.07(c).
"Expiration Date" shall have the meaning specified in Section
9.01.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(iii) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, of any covenant or
warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in whose performance or breach is
dealt with in clause (ii) or (iii), above) and continuation of
such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the defaulting
Trustee or Trustees by the Holders of at least 10% in Liquidation
Amount of the Outstanding Preferred Securities a written notice
specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
or
(v) the occurrence of a Bankruptcy Event with respect to the
Trust.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit C, as amended from time to time.
"Guarantee" means the Guarantee Agreement executed and delivered
by the Depositor and The Bank of New York, a New York banking corporation,
as trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee, or any employee or
agent of the Trust or its Affiliates.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment,
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation
Amount equal to the principal amount of Debentures to be contemporaneously
redeemed in accordance with the Subordinated Indenture and the proceeds of
which will be used to pay the Redemption Price of such Trust Securities
plus accumulated and unpaid Distributions to the date of such payment and
(ii) Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities of the Holder to whom such Debentures are
distributed.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a dissolution
and liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(d).
"No Recognition Opinion" has the meaning specified in Section
9.02(b).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 8.16 shall be the principal executive, financial
or accounting officer of the Depositor. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in
this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Trust, the Property Trustee, the Delaware Trustee or the
Depositor, but not an employee of the Trust, the Property Trustee, or the
Delaware Trustee or the Depositor, and who shall be reasonably acceptable
to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities
theretofore delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the Administrative
Trustees for cancellation;
(ii) Preferred Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such
Preferred Securities; provided that, if such Preferred Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of which
other Preferred Securities have been delivered pursuant to this
Trust Agreement, including pursuant to Section 5.05;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred Securities which such
Trustee knows to be so owned shall be so disregarded and (b) the foregoing
shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or
any such Affiliate. Preferred Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Administrative Trustee the pledgee's right so to
act with respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the owner of a Preferred
Securities Certificate as reflected in the Securities Register.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be [_____________].
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the Bank in
its trust department for the benefit of the Securityholders in which all
amounts paid in respect of the Debentures will be held and from which the
Property Trustee shall make payments to the Securityholders in accordance
with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means a trust originated preferred security
representing an undivided beneficial interest in the assets of the Trust
having a Liquidation Amount of $25 and having rights provided therefor in
this Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit E.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust
Agreement solely in its capacity as Property Trustee of the Trust formed
and continued hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust
Security.
"Redemption Tax Opinion" has the meaning specified in Section
9.02(b).
"Relevant Trustee" shall have the meaning specified in Section
8.10.
"Securities Depositary" shall have the meaning specified in
Section 5.12.
"Securities Register" and "Securities Registrar" shall mean the
Securities Register and Securities Registrar described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Subordinated Indenture" means the Indenture, dated as of
_________ ___, 1995, between the Depositor and the Debenture Trustee, as
trustee, as amended or supplemented from time to time.
"Tax Event" means the receipt by the Trust of an opinion of
nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, clarification of,
or change (including any announced prospective change) in, the laws or
treaties (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting
taxation, (b) any judicial decision or any official administrative
pronouncement, ruling, regulatory procedure, notice or announcement
(including any notice or announcement of intent to issue or adopt any such
administrative pronouncement, ruling, regulatory procedure or regulation)
(each, for purposes of this definition, an "Administrative Action"), or (c)
any amendment to, clarification of, or change in the official position or
the interpretation of any such Administrative Action or judicial decision
or any interpretation or pronouncement that provides for a position with
respect to such Administrative Action or judicial decision that differs
from the theretofore generally accepted position, in each case by any
legislative body, court, governmental authority or regulatory body,
irrespective of the manner in which such amendment, clarification or change
is made known, which amendment, clarification, or change is effective,
which Administrative Action is taken or which judicial decision is issued,
in each case on or after the date of issuance of the Preferred Securities,
there is more than an insubstantial risk that (i) the Trust is, or will be,
subject to United States federal income tax with respect to interest
received on the Debentures, (ii) interest payable by the Depositor on the
Debentures is not, or will not be, fully deductible by the Depositor for
United States federal income tax purposes, or (iii) the Trust is, or will
be, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Trust" means the Delaware business trust created by the Original
Trust and continued hereby and identified on the cover page to this Trust
Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including all exhibits
hereto, including, for all purposes of this Amended and Restated Trust
Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and
govern this Amended and Restated Trust Agreement and any such modification,
amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account and (iii) all proceeds and
rights in respect of the foregoing and any other property and assets for
the time being held by the Property Trustee pursuant to the trusts of this
Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
ARTICLE II.
Establishment of the Trust
Section 2.01. Name. The Trust created hereby shall be known as
"TU Electric Capital 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 Texas Utilities Electric Company, 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 $1, which constituted the initial Trust Property. The Depositor
shall pay organizational expenses of the Trust as they arise or shall, upon
request of any Trustee, promptly reimburse such Trustee for any such
expenses paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
Section 2.04. Issuance of the Preferred Securities. On ______,
1995 the Depositor, on behalf of the Trust, executed and delivered the
Dealer Manager Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, one of the Administrative Trustees, on
behalf of the Trust in accordance with Section 5.02, shall execute and
deliver Preferred Securities Certificates in an aggregate amount of [
] Preferred Securities having an aggregate Liquidation Amount of $[
].
Section 2.05. Subscription and Purchase of Debentures; Issuance
of the Common Securities. Contemporaneously with the execution and
delivery of this Trust Agreement, the Administrative Trustees, on behalf of
the Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Trust and having an aggregate principal
amount equal to $[ ], and, in satisfaction of the purchase price
for such Debentures, one of the Administrative Trustees, on behalf of the
Trust in accordance with Section 5.02, shall execute and deliver to the
Depositor Common Securities Certificates, registered in the name of the
Depositor, in an aggregate amount of [ ] Common Securities having an
aggregate Liquidation Amount of $[ ].
Section 2.06. Declaration of Trust; Appointment of Additional
Administrative Trustees. (a) The exclusive purposes and functions of the
Trust are (i) to issue Trust Securities to the Depositor in exchange for
the Debentures, and (ii) to engage in those activities necessary,
convenient or incidental thereto. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein. The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to
the conditions set forth herein for the benefit of the Securityholders.
The Trustees shall have all rights, powers and duties set forth herein and
in accordance with applicable law with respect to accomplishing the
purposes of the Trust. Anything in this Trust Agreement to the contrary
notwithstanding the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees
set forth herein. The Delaware Trustee shall be one of the Trustees of the
Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
(b) The Property Trustee, the Delaware Trustee and Wayne
Patterson, as Administrative Trustee, hereby appoint Cathryn C. Hulen and
Michael Perkins as additional Administrative Trustees, each of which
persons by execution of this Trust Agreement accepts such appointment.
Section 2.07. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph [(b)] of this Section and Article VIII and in accordance with the
following provisions (A) and (B), the Trustees shall have the authority to
enter into all transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied, otherwise
granted to the Trustees under this Trust Agreement, and to perform all acts
in furtherance thereof, including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(i) the issuance and sale of the Trust Securities;
(ii) without the consent of any Person, to cause the Trust to
enter into and to execute, deliver and perform on behalf of the
Trust, the Expense Agreement, the Dealer Manager Agreement and
the Certificate Depository Agreement and such other agreements as
may be necessary or desirable in connection with the consummation
hereof (such execution to be by the Administrative Trustees or
any one of them);
(iii) to qualify the Trust to do business in any jurisdiction as
may be necessary or desirable;
(iv) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(v) the filing of an Issuer Tender Offer Statement on Schedule
13E-4 and any other tender offer statement required to be filed
with the Securities and Exchange Commission and the conduct of
the Exchange Offer as described therein and in the Dealer Manager
Agreement;
(vi) the registration of the Preferred Securities under the
Securities Act of 1933, as amended, and under state securities or
blue sky laws, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(vii) the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under
the Securities Exchange Act of 1934, as amended, and the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(viii) the appointment of a Paying Agent and Securities Registrar
in accordance with this Trust Agreement;
(ix) registering transfers of the Trust Securities in
accordance with this Trust Agreement;
(x) unless otherwise determined by the Depositor or the
Property Trustee or as otherwise required by the Delaware
Business Trust Act or the Trust Indenture Act, to execute and
deliver on behalf of the Trust (either acting alone or together
with any or all of the Administrative Trustees) any documents
that the Administrative Trustees have the power to execute
pursuant to this Trust Agreement;
(xi) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of Delaware; and
(xii) the taking of any action incidental to the foregoing as
the Administrative Trustees may from time to time determine is
necessary or advisable to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of
the effect of any such action on any particular Securityholder).
(B) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(iv) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities in accordance with the terms of this
Trust Agreement;
(v) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(vii) as provided in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the execution of the
certificate of cancellation to be prepared and filed by the
Administrative Trustees with the Secretary of State of the State of
Delaware; and
(viii) the taking of any action incidental to the foregoing as
the Property Trustee may from time to time determine is necessary or
advisable to protect and conserve the Trust Property for the benefit
of the Securityholders (without consideration of the effect of any
such action on any particular Securityholder).
Subject to this Section 2.07(a)(B), the Property Trustee shall
have none of the duties, powers or authority of the Administrative Trustee
set forth in Section 2.07(a)(A) or the Depositor set forth in Section
2.07(c).
(b) So long as this Trust Agreement remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii)
take any action that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States federal income tax purposes and not as an
association taxable as a corporation, (iv) incur any indebtedness for
borrowed money or (v) take or consent to any action that would result in
the placement of a Lien on any of the Trust Property. The Trustees shall
defend all claims and demands of all Persons at any time claiming any Lien
on any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the
date of this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) to prepare for filing by the Trust with the Commission and
to execute a registration statement on Form S-4 in relation to the
Preferred Securities, including any amendments thereto;
(ii) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(iii) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) to prepare for filing by the Trust with the Commission and
to execute a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) of the
Securities Exchange Act of 1934, as amended ("Exchange Act"),
including any amendments thereto;
(v) to select the investment banker or bankers to act as
dealer managers with respect to the exchange by the Depositor of
Preferred Securities for Depositary Shares ("Exchange") and negotiate
the terms of a Dealer Manager Agreement and pricing agreement
providing for the Exchange;
(vi) to take any other actions necessary or desirable to carry
out any of the foregoing activities; and
(vii) to designate itself or an affiliate to be the Securities
Registrar.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs
of the Trust and to operate the Trust so that the Trust will not be deemed
to be an "investment company" required to be registered under the
Investment Company Act of 1940, as amended, or classified other than as a
"grantor trust" for United States federal income tax purposes and not as an
association taxable as a corporation and so that the Debentures will be
treated as indebtedness of the Depositor for United States federal income
tax purposes. In this connection, the Depositor and the Administrative
Trustees are authorized to take any action, not inconsistent with
applicable law, the certificate of trust filed with the Secretary of State
of the state of Delaware with respect to the Trust or this Trust Agreement
(the "Certificate of Trust"), that each of the Depositor and the
Administrative Trustees determines in its discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the Preferred Securities.
Section 2.08. Assets of Trust. The assets of the Trust shall
consist of the Trust Property.
Section 2.09. Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its
capacity as such) and shall be held and administered by the Property
Trustee for the benefit of the Securityholders in accordance with this
Trust Agreement.
ARTICLE III.
Payment Account
Section 3.01. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustees and the Paying Agent
appointed by the Administrative Trustee which shall initially be Texas
Utilities Services, Inc. shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of making
deposits in and withdrawals from the Payment Account in accordance with
this Trust Agreement. All monies and other property deposited or held from
time to time in the Payment Account shall be held by the Property Trustee
in the Payment Account for the exclusive benefit of the holders of Trust
Securities and for distribution as herein provided, including (and subject
to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held
in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions.
(a) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust available
for the payment of Distributions. Distributions shall accrue from
____________, 1995, and, except in the event that the Depositor exercises
its right to extend the interest payment period for the Debentures pursuant
to Section 311 of the Subordinated Indenture, shall be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year,
commencing on _________ __, 1995. If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, payment of such distribution shall be made on the
immediately preceding Business Day, in each case, with the same force and
effect as if made on such date (each date on which distributions are
payable in accordance with this Section 4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed
at a rate of __% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full quarterly
period shall be computed on the basis of twelve 30-day months and a 360-day
year and for any period shorter than a full month, on the basis of the
actual number of days elapsed. If the interest payment period for the
Debentures is extended pursuant to Section 311 of the Subordinated
Indenture, then Distributions on the Preferred Securities will be deferred
for the period equal to the extension of the interest payment period for
the Debentures and the rate per annum at which Distributions on the Trust
Securities accumulate shall be increased by an amount such that the
aggregate amount of Distributions that accumulate on all Trust Securities
during any such extended interest payment period is equal to the aggregate
amount of interest (including interest payable on unpaid interest at the
percentage rate per annum set forth above, compounded monthly) that accrues
during any such extended interest payment period on the Debentures. The
amount of Distributions payable for any period shall include the Additional
Amounts, if any.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the extent that
the Trust has funds available in the Payment Account for the payment of
such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities on the relevant record
date, which shall be 15 days prior to the relevant Distribution Date, or if
such date is not a Business Day, the next succeeding Business Day.
Section 4.02. Redemption. (a) On each Debenture Redemption
Date, the Trustee will be required to redeem a Like Amount of Trust
Securities at the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment.
(b) Notice of redemption shall be given by the Trustee by first-
class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be
redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of accumulated and
unpaid Dividends to be paid on the Redemption Date;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the total Liquidation Amount of
the particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price plus
accumulated and unpaid Distributions to the date of such payment will
become due and payable upon each such Trust Security to be redeemed
and that interest thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price plus accumulated and
unpaid Distributions to the date of such payment shall be deemed payable on
each Redemption Date only to the extent that the Trust has funds
immediately available in the Payment Account for such payment.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York time, on
the Redemption Date, subject to Section 4.02(c), the Property Trustee shall
irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price plus accumulated and unpaid Distributions to
the date of such payment and will give the Paying Agent irrevocable
instructions to pay the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment to the holders thereof upon
surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the redemption date for any
Trust Securities called for redemption shall be payable to the Holders of
such Trust Securities as they appear on the Register for the Trust
Securities on the relevant record dates for the related Distribution Dates.
If notice of redemption shall have been given and funds deposited as
required, then upon the date of such deposit, all rights of Securityholders
holding Trust Securities so called for redemption will cease, except the
right of such Securityholders to receive the Redemption Price plus
accumulated and unpaid Distributions to the date of such payment, but
without interest, and such Securities will cease to be outstanding. In the
event that any date on which any Redemption Price is payable is not a
Business Day, then payment of the Redemption Price payable on such date
plus accumulated and unpaid Distributions to such date shall be made on the
next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business
Day is in the next succeeding calendar year, payment of such distribution
shall be made on the immediately preceding Business Day, in each case, with
the same force and effect as if made on such date. In the event that
payment of the Redemption Price plus accumulated and unpaid Distributions
in respect of any Trust Securities called for redemption is improperly
withheld or refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accrue, at the then applicable rate, from the Redemption Date
originally established by the Trust for such Trust Securities to the date
such Redemption Price plus accumulated and unpaid Distributions is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price plus
accumulated and unpaid Distributions to such date.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall
be the fifteenth day prior to the Redemption Date.
(f) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated 3% to the Common
Securities and 97% to the Preferred Securities. The particular Preferred
Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee from the Outstanding Preferred
Securities not previously called for redemption, by such method as the
Property Trustee shall deem fair and appropriate and which may provide for
the selection for a redemption of portions (equal to $25 or integral
multiples thereof) of the Liquidation Amount of Preferred Securities of a
denomination larger than $25. The Property Trustee shall promptly notify
the Security Registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for
partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise requires,
all provisions relating to the redemption of Preferred Securities shall
relate, in the case of any Preferred Securities redeemed or to be redeemed
only in part, to the portion of the Liquidation Amount of Preferred
Securities which has been or is to be redeemed.
Section 4.03. Subordination of Common Securities. (a) Payment
of Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made pro
rata based on the Liquidation Amount of the Trust Securities; provided,
however, that if on any Distribution Date or Redemption Date a Debenture
Event of Default shall have occurred and be continuing, no payment of any
Distribution (including Additional Amounts, if applicable) on, or
Redemption Price of, any Common Security, and no other payment on account
of the redemption, liquidation or other acquisition of Common Securities,
shall be made unless payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all distribution periods terminating
on or prior thereto, or in the case of payment of the Redemption Price plus
accumulated and unpaid Distributions the full amount of such Redemption
Price plus accumulated and unpaid Distributions on all Outstanding
Preferred Securities, shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including Additional Amounts,
if applicable) on, or Redemption Price of plus accumulated and unpaid
Distributions, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Debenture Event of
Default, the Holder of Common Securities will be deemed to have waived any
such Event of Default under this Trust Agreement until the effect of all
such Events of Default with respect to the Preferred Securities have been
cured, waived or otherwise eliminated. Until any such Events of Default
under the Trust Agreement with respect to the Preferred Securities have
been so cured, waived or otherwise eliminated, the Property Trustee shall
act solely on behalf of the Holders of the Preferred Securities and not the
Holder of the Common Securities, and only the Holders of the Preferred
Securities will have the right to direct the Property Trustee to act on
their behalf.
Section 4.04. Payment Procedures. Payments in respect of the
Preferred Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Register or, if
the Preferred Securities are held by a Clearing Agency, such Distributions
shall be made to the Clearing Agency, which shall credit the relevant
Persons' accounts at such Clearing Agency on the applicable distribution
dates. Payments in respect of the Common Securities shall be made in such
manner as shall be mutually agreed between the Trustee and the Holder of
the Common Securities.
Section 4.05. Tax Returns and Reports. The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's
expense and direction, and file all United States federal, state and local
tax and information returns and reports required to be filed by or in
respect of the Trust. In this regard, the Administrative Trustees shall
(a) prepare and file (or cause to be prepared or filed) the Internal
Revenue Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
related Internal Revenue Service Form 1099, or any successor form or the
information required to be provided on such form. The Administrative
Trustees shall provide the Depositor with a copy of all such returns,
reports and schedules promptly after such filing or furnishing. The
Trustees shall comply with United States federal withholding and backup
withholding tax laws and information reporting requirements with respect to
any payments to Securityholders under the Trust Securities.
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.03 and
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are outstanding, the Depositor shall be the sole
beneficial owner of the Trust.
Section 5.02. The Trust Securities Certificates. The Trust
Securities Certificates shall be issued in denominations of $25 Liquidation
Amount and integral multiples thereof. The Trust Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile signature
of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual or facsimile signatures of individuals who were, at the
time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits
of this Trust Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the delivery of such
Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled
to the rights and subject to the obligations of a Securityholder hereunder,
upon due registration of such Trust Securities Certificate in such
transferee's name pursuant to Section 5.04.
Section 5.03. Execution and Delivery of Trust Securities
Certificates. On the Closing Date, the Administrative Trustees shall cause
Trust Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.04 and 2.05, to be executed on behalf of the Trust,
delivered to or upon the written order of the Depositor signed by its
chairman of the board, any of its vice presidents or its Treasurer, without
further corporate action by the Depositor, in authorized denominations.
Section 5.04. Registration of Transfer and Exchange of Preferred
Securities Certificates. The Securities Registrar shall keep or cause to
be kept, at the office or agency maintained pursuant to Section 5.08, a
Securities Register in which, subject to such reasonable regulations as it
may prescribe, the Securities Registrar shall provide for the registration
of Preferred Securities Certificates and the Common Securities Certificates
(subject to Section 5.10 in the case of the Common Securities Certificates)
and registration of transfers and exchanges of Preferred Securities
Certificates as herein provided. The Administrative Trustees, acting
together shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to
Section 5.08, the Administrative Trustees, or any one of them, shall
execute and deliver (or shall cause The Bank of New York as its agent to
deliver), in the name of the designated transferee or transferees, one or
more new Preferred Securities Certificates in authorized denominations of a
like aggregate Liquidation Amount. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred Securities
Certificates in authorized denominations of the same class and of a like
aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.08.
Every Preferred Securities Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrative Trustees
and the Securities Registrar duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Administrative Trustees in accordance with
customary practice. The Trust shall not be required to (i) issue, register
the transfer of, or exchange any Preferred Securities during a period
beginning at the opening of business 15 calendar days before the day of
mailing of a notice of redemption of any Preferred Securities called for
redemption and ending at the close of business on the day of such mailing
or (ii) register the transfer of or exchange any Preferred Securities so
selected for redemption, in whole or in part, except the unredeemed portion
of any such Preferred Securities being redeemed in part.
No service charge shall be made for any registration of transfer
or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If (a) any mutilated Trust Securities Certificate
shall be surrendered to the Securities Registrar, or if the Securities
Registrar shall receive evidence to its satisfaction of the destruction,
loss or theft of any Trust Securities Certificate and (b) there shall be
delivered to the Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of them and
the Depositor harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser,
the Administrative Trustees, or any one of them, on behalf of the Trust
shall execute by manual or facsimile signature and the Administrative
Trustees, or any one of them, shall make available for delivery, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Trust Securities Certificate, a new Trust Securities Certificate of like
class, tenor and denomination. In connection with the issuance of any new
Trust Securities Certificate under this Section, the Administrative
Trustees or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive
evidence of an ownership interest in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Trust Securities Certificate
shall be found at any time.
Section 5.06. Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of
transfer, the Trustees and the Securities Registrar shall be entitled to
treat the Person in whose name any Trust Securities Certificate shall be
registered in the Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving distributions and for all other
purposes whatsoever, and neither the Trustee nor the Securities Registrar
shall be bound by any notice to the contrary.
Section 5.07. Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to be
furnished (x) to the Depositor, within 15 days after receipt by any
Administrative Trustee of a request therefor from the Depositor in writing
and (y) to the Property Trustee, promptly after receipt by any
Administrative Trustee of a request therefor from the Property Trustee in
writing in order to enable the Property Trustee to discharge its
obligations under this Trust Agreement, a list, in such form as the
Depositor may reasonably require, of the names and addresses of the
Securityholders as of the most recent Record Date. If Holders of Trust
Securities Certificates evidencing ownership at such time and for the
previous six months not less than 25% of the outstanding aggregate
Liquidation Amount apply in writing to any Administrative Trustee, and such
application states that the applicants desire to communicate with other
Securityholders with respect to their rights under this Trust Agreement or
under the Trust Securities Certificates and such application is accompanied
by a copy of the communication that such applicants propose to transmit,
then the Administrative Trustees shall, within five Business Days after the
receipt of such application, afford such applicants access during normal
business hours to the current list of Securityholders. Each Holder, by
receiving and holding a Trust Securities Certificate, shall be deemed to
have agreed not to hold either the Depositor or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless
of the source from which such information was derived.
Section 5.08. Maintenance of Office or Agency. The
Administrative Trustees shall maintain in the Borough of Manhattan, The
City of New York, an office or offices or agency or agencies where
Preferred Securities Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trustees
in respect of the Trust Securities Certificates may be served. The
Administrative Trustees initially designate The Bank of New York, 101
Barclay Street, 21 West, New York, New York 10286 as its principal
corporate trust office for such purposes. The Administrative Trustees
shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Register or
any such office or agency.
Section 5.09. Appointment of Paying Agent. The Paying Agent
shall make distributions to Securityholders from the Payment Account and
shall report the amounts of such distributions to the Administrative
Trustees and the Property Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose
of making the distributions referred to above. The Administrative Trustees
or any one of them may revoke such power and remove the Paying Agent if the
Administrative Trustee determines in its sole discretion that the Paying
Agent shall have failed to perform its obligations under this Agreement in
any material respect. The Paying Agent shall initially be the Bank, and it
may choose any co-paying agent that is acceptable to the Administrative
Trustees and the Depositor. The Paying Agent shall be permitted to resign
upon 30 days' written notice to the Administrative Trustees and the
Depositor. In the event that [ ] shall no longer be the Paying Agent,
the Administrative Trustees shall appoint a successor that is reasonably
acceptable to the Property Trustee and the Depositor to act as Paying Agent
(which shall be a bank or trust company). The Administrative Trustees
shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the
Trustees an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if
any, held by it for payment to the Securityholders in trust for the benefit
of the Securityholders entitled thereto until such sums shall be paid to
such Securityholders. The Paying Agent shall return all unclaimed funds to
the Property Trustee and upon resignation or removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply to the
Bank in its role as Paying Agent, for so long as the Bank shall act as
Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Trust Agreement to the Paying
Agent shall include any co-paying agent unless the context requires
otherwise.
Section 5.10. Ownership of Common Securities by Depositor. On
the Closing Date and on each other date provided for in Section 2.05, the
Depositor shall acquire, and thereafter retain, beneficial and record
ownership of the Common Securities. Any attempted transfer of the Common
Securities shall be void. The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
Section 5.11. Definitive Preferred Securities Certificates.
Upon initial issuance of the Preferred Securities the Definitive Preferred
Securities Certificates shall be printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to the
Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees, or any one of them. The Administrative Trustees,
or any one of them, shall execute by manual or facsimile signature the
Definitive Preferred Securities Certificates initially in accordance with
the instructions of the [Dealer/Managers]. Neither the Securities
Registrar nor any of the Administrative Trustees shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions.
Section 5.12. Book-Entry System. The Preferred Securities may
be issued in the name of a securities depository ("Securities Depository")
or a nominee therefor, and held in the custody of the Securities
Depository. In such event, a single certificate will be issued and
delivered to the Securities Depository for the Preferred Securities, in
which case the beneficial owners will not receive physical delivery of
certificates for Preferred Securities except as provided herein, all
transfers of beneficial ownership interests will be made by book-entry
only, and no investor or other party purchasing, selling or otherwise
transferring beneficial ownership of the Preferred Securities will receive,
hold or deliver any certificate for Preferred Securities. The Authority,
the Depositor, the Trustee and the Paying Agent will recognize the
Securities Depository or its nominee as the Holder of Preferred Securities
for all purposes, including notices and voting.
The Administrative Trustees, at the direction and expense of the
Depositor, may from time to time appoint a Securities Depository or a
successor thereto and enter into a letter of representation or other
agreement with such Securities Depository to establish procedures with
respect to the Preferred Securities. Any Securities Depository shall be a
Clearing Agency.
The Authority and the Trustee covenant and agree to meet the
requirements of a Securities Depository for the Preferred Securities with
respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred
Securities.
Whenever the beneficial ownership of the Preferred Securities is
determined through the books of a Securities Depository, the requirements
in this Trust Agreement of holding, delivering or transferring such
Preferred Securities shall be deemed modified to meet the requirements of
the Securities Depository with respect to actions of the Trustees, the
Depositor and the Paying Agent. Any provisions hereof permitting or
requiring delivery of such Preferred Securities shall, while such Preferred
Securities are in a Book-Entry System, be satisfied by the notation on the
books of the Securities Depository in accordance with applicable state law.
Section 5.13. Rights of Securityholders. The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its
capacity as such) in accordance with Section 2.09, and the Securityholders
shall not have any right or title therein other than an undivided
beneficial interest in the assets of the Trust conferred by their Trust
Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described
below. The Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust Agreement. The
Preferred Securities shall have no preemptive rights and when issued and
delivered to Securityholders against payment of the purchase price therefor
will be fully paid and nonassessable by the Trust.
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights. (a) Except as
provided in this Section 6.01, in Section 10.03 and as otherwise required
by law, no Holder of Preferred Securities shall have any right to vote or
in any manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee,
the Trustees shall not (i) direct the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Debenture Trustee with
respect to such Debentures, (ii) waive any past default which is waivable
under Section 813 of the Subordinated Indenture, (iii) exercise any right
to rescind or annul a declaration that the principal of all the Debentures
shall be due and payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a 66 2/3 in Liquidation Amount of the
Preferred Securities; provided, however, that where a consent under the
Subordinated Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by any Trustee
without the prior written consent of each holder of Preferred Securities.
The Trustees shall not revoke any action previously authorized or approved
by a vote of the Preferred Securities, except pursuant to a subsequent vote
of the Preferred Securities. The Property Trustees shall notify all
Holders of the Preferred Securities of any notice of default received from
the Debenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the Property
Trustees shall, at the expense of the Depositor, obtain an Opinion of
Counsel experienced in such matters to the effect that the Trust will not
be classified other than a "grantor trust" for United States federal income
tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustee otherwise proposes to effect, (i) any action that would
materially adversely affect the powers, preferences or special rights of
the Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust Agreement,
then the Holders of outstanding Preferred Securities as a class will be
entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of
at least 66 2/3 in Liquidation Amount of the outstanding Preferred
Securities. No amendment to this Trust Agreement may be made if, as a
result of such amendment, the Trust would be classified other than a
"grantor trust" for United States federal income tax purposes.
Section 6.02. Notice of Meetings. Notice of all meetings of the
Holders of Preferred Securities, stating the time, place and purpose of the
meeting, shall be given by the Administrative Trustees pursuant to Section
10.08 to each Holder of a Preferred Security, at his registered address, at
least 15 days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so considered
whether or not stated in the notice of the meeting. Any adjourned meeting
may be held as adjourned without further notice.
Section 6.03. Meetings of Holders of Preferred Securities. No
annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders
to vote on any matter upon the written request of the Holders of 25% of the
then outstanding Preferred Securities (based upon their aggregate
Liquidation Amount) and may, at any time in their discretion, call a
meeting of Holders of Preferred Securities to vote on any matters as to the
which Holders of Preferred Securities are entitled to vote.
Holders of 50% of the then outstanding Preferred Securities
(based upon their aggregate Liquidation Amount), present in person or by
proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Holders of Preferred Securities present, in person or by proxy, holding
more than the lesser of (x) 66 2/3% of the then outstanding Preferred
Securities (based upon their aggregate Liquidation Amount) held by the
Holders of then outstanding Preferred Securities present, either in person
or by proxy, at such meeting and (y) 50% of the outstanding Preferred
Securities (based upon their aggregate liquidation amount) shall constitute
the action of the Securityholders, unless this Trust Agreement requires a
greater number of affirmative votes.
Section 6.04. Voting Rights. Securityholders shall be entitled
to one vote for each $25 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
Section 6.05. Proxies, etc. At any meeting of Securityholders,
any Securityholder entitled to vote thereat may vote by proxy, provided
that no proxy shall be voted at any meeting unless it shall have been
placed on file with the Administrative Trustees, or with such other officer
or agent of the Trust as the Administrative Trustee may direct, for
verification prior to the time at which such vote shall be taken. Only
Securityholders of record shall be entitled to vote. When Trust Securities
are held jointly by several persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by
proxy, and such joint owners or their proxies so present disagree as to any
vote to be cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, or, if earlier, until eleven months after it is sent and the
burden of proving invalidity shall rest on the challenger.
Section 6.06. Securityholder Action by Written Consent. Any
action which may be taken by Securityholders at a meeting may be taken
without a meeting if Securityholders holding more than a majority of all
outstanding Trust Securities entitled to vote in respect of such action (or
such larger proportion thereof as shall be required by any express
provision of this Trust Agreement) shall consent to the action in writing
(based upon their aggregate Liquidation Amount).
Section 6.07. Record Date for Voting and Other Purposes. For
the purposes of determining the Securityholders who are entitled to notice
of and to vote at any meeting or by written consent, or to participate in
any distribution on the Trust Securities in respect of which a record date
is not otherwise provided for in this Trust Agreement, or for the purpose
of any other action, the Administrative Trustees may from time to time fix
a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.08. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
or permitted by this Trust Agreement to be given, made or taken by
Securityholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Securityholders in person or
by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to the Administrative Trustees. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Securityholders signing
such instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01) conclusive in
favor of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgements of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which any
Trustee deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind
every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees or the Trust
in reliance thereon, whether or not notation of such action is made upon
such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount
of such Trust Security or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all or any part
of such liquidation amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with
respect to the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect to
such matter.
Section 6.09. Inspection of Records. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to
the Administrative Trustees and the Property Trustee, the other records of
the Trust shall be open to inspection by Securityholders during normal
business hours for any purpose reasonably related to such Securityholder's
interest as a Securityholder.
ARTICLE VII.
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee. The Property Trustee hereby
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(a) the Property Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing under the
laws of the State of New York;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement will not violate, conflict with or
constitute a breach of the Property Trustee's charter or by-laws; and
(e) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee contemplated herein require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority
or agency under any existing Federal law governing the banking or trust
powers of the Property Trustee or under the laws of the State of New York;
Section 7.02. Delaware Trustee. The Delaware Trustee represents
and warrants for the benefit of the Depositor and the Securityholders that:
(a) the Delaware Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing under the
laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally
binding agreement of the Delaware Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(d) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement will not violate the Delaware Trustee's
charter or by-laws; and
(e) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Delaware Trustee contemplated herein require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority
or agency under any existing Federal law governing the banking or trust
powers of the Delaware Trustee or under the laws of the State of Delaware.
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee,
the Trust Indenture Act, and no implied covenants or obligations shall be
read into this Trust Agreement against any of the Trustees.
Notwithstanding the foregoing, no provision of this Trust Agreement shall
require any of the Trustees to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it. Notwithstanding anything contained in this Trust Agreement to the
contrary, the duties and responsibilities of the Property Trustee under
this Trust Agreement shall be subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust Agreement, the
Trust Indenture Act and, to the extent applicable, Rule 3A-7 under the 1940
Act, or any successor rule thereunder. Whether or not therein expressly so
provided, every provision of this Trust Agreement relating to the conduct
or affecting the liability of or affording protection to the Trustees shall
be subject to the provisions of this Section.
(b) All payments made by the Property Trustee or a Paying Agent
in respect of the Trust Securities shall be made only from the income and
proceeds from the Trust Property and only to the extent that there shall be
sufficient income or proceeds from the Trust Property to enable the
Property Trustee or Paying Agent to make payments in accordance with the
terms hereof. Each Securityholder, by its acceptance of a Trust Security,
agrees that it will look solely to the income and proceeds from the Trust
Property to the extent available for distribution to it as herein provided
and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability
in respect of any Trust Security. This Section 8.01(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust Indenture
Act.
(c) All duties and responsibilities of the Property Trustee
contained in this Trust Agreement are subject to the following:
(i) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Trust Property
shall be to deal with such property in a similar manner as the
Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to
the Property Trustee under this Trust Agreement, the Trust Indenture
Act and Rule 3a-7 thereunder;
(ii) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of
the Trust Property or the payment of any taxes or assessments levied
thereon or in connection therewith;
(iii) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor. Money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
established by the Property Trustee pursuant to Section 2.07(a)(B)(i)
and except to the extent otherwise required by law;
(iv) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
Section 8.02. Notice of Defaults. Within five Business Days
after the occurrence of any Event of Default, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.08, notice
of any default known to the Property Trustee to the Securityholders and the
Depositor, unless such default shall have been cured or waived. For the
purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
Section 8.03. Certain Rights of Property Trustee. Subject to
the provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, appraisal, bond debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) if (A) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses
of action or (B) in construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein or (C) the
Property Trustee is unsure of the application of any provision of this
Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the
Depositor requesting written instructions of the Depositor as to the
course of action to be taken. The Property Trustee shall take such
action, or refrain from taking such action, as the Property Trustee
shall be instructed in writing to take, or to refrain from taking, by
the Depositor; provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within ten Business
Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but
shall be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and
in the best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the
Administrative Trustees;
(iv) the Property Trustee may consult with counsel of its
selection and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(v) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable security or indemnity
against the costs, expenses (including reasonable attorneys' fees and
expenses) and liabilities which might be incurred by it in compliance
with such request or direction;
(vi) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, approval, bond debenture, note or other
evidence of indebtedness or other paper or document reasonably
believed by it to be genuine, unless requested in writing to do so by
one or more Securityholders, but the Property Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Property Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Depositor
personally or by agent or attorney;
(vii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Property Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder, provided
that the Property Trustee shall be responsible for its own negligence
or recklessness with respect to selection of any agent or attorney
appointed by it hereunder.
(viii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Trust Agreement;
(ix) the Property Trustee shall not be charged with knowledge
of any default or Event of Default with respect to the Trust
Securities unless either (1) a responsible officer of the Property
Trustee shall have actual knowledge of the default or Event of Default
or (2) written notice of such default or Event of Default shall have
been given to the Property Trustee by the Depositor, the
Administrative Trustees or by any Holder of the Trust Securities;
(x) no provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred
or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Property Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to
exercise any such right, power, duty or obligation; and no permissive
or discretionary power or authority available to the Property Trustee
shall be construed to be a duty; and
(xi) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the Property
Trustee shall have reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured to it under the
terms of this Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
(xii) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any tax or securities) (or any
rerecording, refiling or registration thereof);
(xiii) the Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction; and
(xiv) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Trust Securities, which instructions may only be given
by the Holders of the same proportion and liquidation amount of the
Trust Securities as would be entitled to direct the Property Trustee
under the terms of this Trust Agreement in respect of such remedies,
right or action, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and
(iii) shall be protected in acting in accordance with such
instructions.
Section 8.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the
Trustees do not assume any responsibility for their correctness. The
Trustees make no representations as to the value or condition of the
property of the Trust or any part thereof, nor as to the validity or
sufficiency of this Trust Agreement or the Trust Securities. The Trustee
shall not be accountable for the use or application by the Trust of the
proceeds of the Trust Securities in accordance with Section 2.05.
Section 8.05. May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity,
may become the owner or pledgee of Trust Securities and may otherwise deal
with the Trust with the same rights it would have if it were not a Trustee
or such other agent.
Section 8.06. Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustees in accordance
with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, bad faith or willful misconduct; and
(3) to indemnify each Trustee for, and to hold each Trustee
harmless against, any and all loss, damage, claims, liability or
expense incurred without negligence, bad faith or willful misconduct
on its part, arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the reasonable costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the
Depositor under this Section, each of the Trustees shall have a lien prior
to the Trust Securities upon all property and funds held or collected by
such Trustee as such, except funds held in trust for the payment of
Distributions on the Trust Securities.
The provisions of this Section shall survive the termination of
this Trust Agreement.
Section 8.07. Certain Trustees Required; Eligibility. (a) There
shall at all times be a Property Trustee hereunder with respect to the
Trust Securities. The Property Trustee shall be a Person that has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Property
Trustee with respect to the Trust Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article
VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through one or
more persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with respect
to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the
State of Delaware or (ii) a legal entity with its principal place of
business in the State of Delaware that otherwise meets the
requirements of applicable Delaware law and that shall act through one
or more persons authorized to bind such entity.
Section 8.08. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property
Trustee shall either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. The Subordinated Indenture and the
Guarantee Agreement shall be deemed to be specifically described in this
Trust Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
Section 8.09. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing,
at any time or times, for the purpose of meeting the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the
Trust Property may at the time be located, the Depositor and the Property
Trustees shall have power to appoint, and upon the written request of the
Administrative Trustees, the Depositor shall for such purpose join with the
Property Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Administrative Trustees either to act as co-
trustee, jointly with the Property Trustee, of all or any part of such
Trust Property, or to act as separate trustee of any such property, in
either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the
Depositor does not join in such appointment within 15 days after the
receipt by it of a request so to do, or in case an Event of Default under
the Subordinated Indenture has occurred and is continuing, the
Administrative Trustees alone shall have power to make such appointment.
Should any written instrument from the Depositor be required by
any co-trustee or separate trustee so appointed for more fully confirming
to such co-trustee or separate trustee such property, title, right, or
power, any and all such instruments shall, on request, be executed,
acknowledged, and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(1) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees designated for
such purpose hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby conferred
or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Property Trustee
shall be incompetent or unqualified to perform such Act, in which
event such rights, powers, duties, and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section 8.09, and, in case an Event of
Default under the Subordinated Indenture has occurred and is
continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written request of
the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery, and performance of all instruments
and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this
Section.
(4) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or
any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (as the case may be, the "Relevant
Trustee") and no appointment of a successor Relevant Trustee pursuant to
this Article shall become effective until the acceptance of appointment by
the successor Relevant Trustee in accordance with the applicable
requirements of Section 8.11.
The Relevant Trustee may resign at any time with respect to the
Trust Securities by giving written notice thereof to the Securityholders.
If the instrument of acceptance by a successor Relevant Trustee required by
Section 8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the resigning
Relevant Trustee may petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee with respect to the Trust
Securities.
Unless an Event of Default shall have occurred and be continuing,
the Relevant Trustee may be removed at any time by Act of the Common
Securityholder. If an Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at such time by Act of the
Securityholders of a majority in Liquidation Amounts of the Preferred
Securities Certificates, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Relevant Trustee at a time when no Event
of Default shall have occurred and be continuing, the Common
Securityholder, by Act of the Common Securityholder delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees with respect to the Trust Securities and the Trust, and
the retiring Relevant Trustee shall comply with the applicable requirements
of Section 8.11. If the Relevant Trustee shall resign, be removed or
become incapable of continuing to act as the Relevant Trustee at a time
when an Event of Default shall have occurred and be continuing, the
Preferred Securityholders, by Act of the Preferred Securityholders of a
majority in Liquidation Amount of the Preferred Securities then outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a
successor Relevant Trustee or Trustees with respect to the Trust Securities
and the Trust, and the Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee with
respect to the Trust Securities shall have been so appointed by the Common
Securityholders or the Preferred Securityholders and accepted appointment
in the manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Relevant Trustee
with respect to the Trust Securities.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee with respect to the
Trust Securities and the Trust and each appointment of a successor Trustee
with respect to the Trust Securities and the Trust to all Securityholders
in the manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name and address of the successor
Relevant Trustee with respect to the Trust Securities and the Trust and, in
the case of the Property Trustee, the address of its Corporate Trust
Office.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes incompetent or
incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (i) the unanimous act of remaining
Administrative Trustees if there are at least two of them or (ii) otherwise
by the Depositor (with the successor in each case being an individual who
satisfies the eligibility requirement for Administrative Trustees or
Delaware Trustee, as the case may be, set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes that any
Administrative Trustee who is a natural person has become incompetent or
incapacitated, the Depositor, by notice to the remaining Trustees, may
terminate the status of such Person as an Administrative Trustee (in which
case the vacancy so created will be filled in accordance with the preceding
sentence).
Section 8.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Relevant Trustee with respect
to all Trust Securities and the Trust, every such successor Relevant
Trustee so appointed shall execute, acknowledge and deliver to the Trust
and to the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Relevant Trustee shall become effective and such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Relevant
Trustee; but, on the request of the Depositor or the successor Relevant
Trustee, such retiring Relevant Trustee shall, upon payment of its charges
by the Depositor, execute and deliver an instrument transferring to such
successor Relevant Trustee all the rights, powers and trusts of the
retiring Relevant Trustee and shall duly assign, transfer and deliver to
such successor Relevant Trustee all property and money held by such
retiring Relevant Trustee hereunder, subject, nevertheless, to the retiring
Trustee's prior lien provided for in Section 8.06.
In case of the appointment hereunder of a successor Relevant
Trustee with respect to the Trust Securities and the Trust, the retiring
Relevant Trustee and each successor Trustee with respect to the Trust
Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee
all the rights, powers, trusts and duties of the retiring Relevant Trustee
with respect to the Trust Securities and the Trust and (2) shall add to or
change any of the provisions of this Trust Agreement as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by
more than one Relevant Trustee, it being understood that nothing herein or
in such amendment shall constitute such Relevant Trustees co-trustees of
the same trust and that each such Relevant Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Relevant Trustee and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust; but, on request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall duly assign, transfer
and deliver to such successor Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the retiring
Relevant Trustee shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant Trustee all
such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless
at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article VIII.
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee or the Delaware
Trustee or any Administrative Trustee that is not a natural person may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of such Relevant Trustee,
shall be the successor of such Relevant Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this Article VIII,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto.
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee or the Delaware
Trustee shall be or become a creditor of the Depositor or the Trust (or any
other obligor upon the Debentures or the Trust Securities), the Property
Trustee or the Delaware Trustee, as the case may be, shall be subject to
the provisions of the Trust Indenture Act regarding the collection of
claims against the Depositor or Trust (or any such other obligor).
Section 8.14. Reports by Property Trustee. (a) Within 60 days
after December 31 of each year commencing with December 31, 1995 the
Property Trustee shall transmit by mail to all Securityholders, as their
names and addresses appear in the Register, and to the Depositor, a brief
report dated as of such December 31 with respect to:
(i) its eligibility under Section 8.07 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible
under said Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Trust Agreement during the
twelve-month period (or, in the case of the initial report, the
period since the Closing Date) ending with such December 31 or,
if the Property Trustee has not complied in any material respect
with such obligations, a description of such non-compliance; and
(iii) any action taken by the Property Trustee in the
performance of its duties hereunder which it has not previously
reported and which in its opinion materially affects the Trust
Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its
actions under this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each stock
exchange upon which the Trust Securities are listed, with the Commission
and with the Depositor.
Section 8.15. Reports to the Property Trustee. The Depositor
and the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information as required by
Section 314 (if any) and the compliance certificate required by Section 314
of the Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
Section 8.16. Evidence of Compliance With Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Trust Agreement
(including any covenants compliance with which constitutes a condition
precedent) that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given
by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act may
be given in the form of an Officers' Certificate.
Section 8.17. Number of Trustees.
(a) The number of Trustees (exclusive of any Special
Administrative Trustee) shall be five, provided that Depositor, by written
instrument may increase or decrease the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Trustees is increased pursuant to Section
8.17(a), a vacancy shall occur. The vacancy shall be filled with a
Trustee appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over
the age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.07(a), including any registration statement or
amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) the Administrative Trustees shall have power to delegate
from time to time to such of their number the doing of such things and the
execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth
herein.
Section 8.19. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified Person
acting under this Trust Agreement shall not be liable to the Trust or to
any other Covered Person for its good faith reliance on the provisions of
this Trust Agreement. The provisions of this Trust Agreement, to the
extent that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the duties
imposed on the Property Trustee under the Trust Indenture Act), are agreed
by the parties hereto to replace such other duties and liabilities of such
Indemnified Person;
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
an Indemnified Person and any Covered Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that are,
fair and reasonable to the Trust or any Holder of Trust
Securities, the Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms, considering in
each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation
and the benefits and burdens relating to such interests, any
customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person, the resolution,
action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Trust Agreement
or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or
otherwise; and
(c) Whenever in this Trust Agreement an Indemnified Person is
permitted or required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider
such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust
or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard
and shall not be subject to any other or different standard
imposed by this Trust Agreement or by applicable law.
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date. The Trust shall
automatically terminate on December 31, ____ (the "Expiration Date") and
the Trust Property shall be distributed in accordance with Section 9.04 and
Section _______.
Section 9.02. Early Termination. (a) Upon the first to occur
of any of the following events (such first occurrence, an "Early
Termination Event"):
(i) the occurrence of a Bankruptcy Event, dissolution or
liquidation of, in respect of, the Depositor;
(ii) the redemption of all of the Preferred Securities;
(iii) the occurrence of a Tax Event;
(iv) an order for judicial termination of the Trust having been
entered by a court of competent jurisdiction;
the Trust shall terminate and the Trustees shall take such action as is
required by Section 9.04.
Section 9.03. Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall
terminate upon the latest to occur of the following: (i) the distribution
by the Property Trustee to Securityholders upon the liquidation of the
Trust pursuant to Section 9.04, or upon the redemption of all of the Trust
Securities pursuant to Section 4.02 or 9.04(d), of all amounts required to
be distributed hereunder upon the final payment of the Trust Securities;
(ii) the payment of any expenses owed by the Trust; and (iii) the discharge
of all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
Section 9.04. Liquidation. (a) If an Early Termination Event
specified in clause (i) or (iv) of Section 9.02 occurs, after satisfaction
of liabilities to creditors of the Trust as provided by applicable law, the
Trust shall be liquidated by the Trustees as expeditiously as the Trustees
determine to be possible by distributing to each Securityholder a Like
Amount of Debentures, subject to Section 9.04(e). Notice of liquidation
shall be given by the Administrative Trustees by first-class mail, postage
prepaid, mailed not later than 30 nor more than 60 days prior to the
Liquidation Date to each Holder of Trust Securities at such Holder's
address appearing in the Security Register. All notices of liquidation
shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be outstanding and any
Trust Securities Certificates not surrendered for exchange will
be deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.04(d) applies receive a Liquidation
Distribution, as the Administrative Trustee or the Property
Trustee shall deem appropriate.
(b) Except where Section 9.02(a)(ii) or 9.04(e) applies, in
order to affect the liquidation of the Trust and distribution of the
Debentures to Securityholders, the Property Trustee shall establish a
record date for such distribution (which shall be not more than 45 days
prior to the Liquidation Date) and, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish
such procedures as it shall deem appropriate to affect the distribution of
Debentures in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.02(a)(ii) or 9.04(e) applies, after
the Liquidation Date, (i) the Trust Securities will no longer be deemed to
be Outstanding, (ii) certificates representing a Like Amount of Debentures
will be issued to Holders of Trust Securities Certificates, upon surrender
of such certificates to the Administrative Trustees or their agent for
exchange, (iii) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the last
Distribution Date on which a Distribution was made on such Trust
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments or interest or principal will
be made to Holders of Trust Securities Certificates with respect to such
Debentures) and (iv) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to receive Debentures
upon surrender of Trust Securities Certificates.
(d) If at any time, a Tax Event shall occur and be continuing,
the Administrative Trustees shall, unless the Debentures are redeemed in
the limited circumstances described below, terminate the Trust and, after
satisfaction of creditors of the Trust, if any, cause Debentures held by
the Property Trustee having a Like Amount of the Preferred Securities and
the Common Securities to be distributed to the Holders of the Preferred
Securities and the Common Securities on a pro rata basis in liquidation of
such Holders' interests in the Trust, within 90 days following the
occurrence of such Tax Event; provided, however, that as a condition of
such termination and distribution, the Administrative Trustees shall have
received an opinion of nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may
rely on any then applicable published revenue rulings of the Internal
Revenue Service, to the effect that the Holders of the Preferred Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of the termination of the Trust and distribution of
Debentures; and, provided, further, that, if and as long as at the time
there is available to the Trust the opportunity to eliminate, within such
90-day period, the Tax Event by taking some ministerial action, such as
filing a form or making an election, or pursuing some other similar
reasonable measure which has no adverse effect on the Trust or the Holders
of the Preferred Securities, the Trust will pursue such measure in lieu of
termination. Furthermore, if (i) the Administrative Trustees have received
an opinion of nationally recognized independent tax counsel experienced in
such matters (a "Redemption Tax Opinion") that, as a result of a Tax Event,
there is more than an insubstantial risk that the Depositor would be
precluded from deducting the interest on the Debentures for United States
federal income tax purposes even if the Debentures were distributed to the
Holders of Preferred Securities and Common Securities in liquidation of
such Holders' interests in the Trust as described above or (ii) the
Administrative Trustees shall have been informed by such tax counsel that a
No Recognition Opinion cannot be delivered to the Trust, the Depositor
shall have the right, upon not less than 30 nor more than 60 days' notice,
to redeem the Debentures in whole or in part for cash at the Redemption
Price plus accumulated and unpaid Distributions to the date of such payment
within 90 days following the occurrence of such Tax Event, and promptly
following such redemption Preferred Securities and Common Securities with
an aggregate liquidation preference amount equal to the aggregate principal
amount of the Debentures so redeemed will be redeemed by the Trust at the
Redemption Price plus accumulated and unpaid Distributions on a pro rata
basis, provided, however, that if at the time there is available to the
Depositor or the Administrative Trustees on behalf of the Trust the
opportunity to eliminate, within such 90-day period, the Tax Event by
taking some ministerial action, such as filing a form or making an
election, or pursuing some other similar reasonable measure, which has no
adverse effect on the Trust, the Depositor or the Holders of the Preferred
Securities, the Depositor or the Administrative Trustees on behalf of the
Trust will pursue such measure in lieu of redemption and provided further
that the Depositor shall have no right to redeem the Debentures while the
Administrative Trustees on behalf of the Trust are pursuing any such
ministerial action. The Common Securities will be redeemed on a pro rata
basis with the Preferred Securities, except that if an Event of Default has
occurred and is continuing, the Preferred Securities will have a priority
over the Common Securities with respect to payment of the Redemption Price
and accumulated and unpaid Distributions to the date of such payment.
(e) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property
Trustee not to be practical, the Trust Property shall be liquidated, and
the Trust shall be dissolved, wound-up or terminated, by the Property
Trustee in such manner as the Property Trustee determines. In such event,
on the date of the dissolution, winding-up or other termination of the
Trust, Securityholders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an
amount equal to the Liquidation Amount per Trust Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such dissolution, winding up or
termination, the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence,
the amounts payable by the Trust on the Trust Securities shall be paid on a
pro rata basis (based upon Liquidation Amounts). The Depositor will be
entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders
of Preferred Securities, except that, if an Event of Default has occurred
and is continuing or if an Event of Default has not occurred solely by
reason of a requirement that time lapse before or notice be given, the
Preferred Securities shall have a priority over the Common Securities.
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and Assumption of
Obligations. Subject to the terms and conditions hereof, the Depositor
irrevocably and unconditionally guarantees to each Person to whom the Trust
is now or hereafter becomes indebted or liable (the "Beneficiaries"), and
agrees to assume liability for, the full payment, when and as due, of any
and all Obligations (as hereinafter defined) to such Beneficiaries. As
used herein, "Obligations" means any indebtedness, expenses or liabilities
of the Trust, other than obligations of the Trust to pay to Holders or
other similar interests in the Trust the amounts due such Holders pursuant
to the terms of the Preferred Securities or such other similar interests,
as the case may be. This guarantee and assumption is intended to be for
the benefit, of, and to be enforceable by, all such Beneficiaries, whether
or not such Beneficiaries have received notice hereof.
Section 10.02. Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial or
otherwise, in a Trust Security shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or
any Securityholder for such person, to claim an accounting, take any action
or bring any proceeding in any court for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
Section 10.03. Amendment.
(a) This Trust Agreement may be amended from time to time (on
approval of a majority of the Administrative Trustees of the Trust and the
Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein or therein which may
be inconsistent with any other provision herein or therein, or to make any
other provisions with respect to matters or questions arising under this
Trust Agreement, which shall not be inconsistent with the other provisions
of this Trust Agreement, provided, however, that any such amendment shall
not adversely affect in any material respect the interests of any
Securityholder or (ii) to modify, eliminate or add to any provisions of
this Trust Agreement to such extent as shall be necessary to ensure that
the Trust will not be classified for United States federal income tax
purposes other than as a "grantor trust" and not as an association taxable
as a corporation at any time that any Trust Securities are outstanding or
to ensure the Trust's exemption from the status of an "investment company"
under the Investment Company Act of 1940, as amended; provided, however,
that, except in the case of clause (ii), such action shall not adversely
affect in any material respect the interests of any Securityholder and, in
the case of clause (i), any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.03(c), any provision of
this Trust Agreement may be amended by the Trustees and the Depositor with
(i) the consent of Holders of Trust Securities representing not less than a
majority (based upon Liquidation Amounts) of the Trust Securities then
outstanding and (ii) receipt by the Trustees of an Opinion of Counsel to
the effect that such amendment or the exercise of any power granted to the
Trustee in accordance with such amendment will not affect the Trust's
status as a grantor trust for federal income tax purposes or the Trust's
exemption from status of an "investment company" under the Investment
Company Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder
(such consent being obtained in accordance with Section 6.03 or 6.06), this
Trust Agreement may not be amended to (i) change the amount or timing of
any Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such payment on
or after such date.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to qualify for
the exemption from status of an "investment company" under the Investment
Company Act of 1940, as amended, afforded by Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor a
copy of such amendment.
Section 10.04. Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.05. GOVERNING LAW. THIS TRUST AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE
TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
Section 10.06. Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to the Trust
or the Relevant Trustees or any of them, including any successor by
operation of law.
Section 10.07. Headings. The Article and Section headings are
for convenience only and shall not affect the construction of this Trust
Agreement.
Section 10.08. Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the
Depositor may be given or served in writing by deposit thereof, postage
prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (i) in the case of a Preferred
Securityholder, to such Preferred Securityholder as such Securityholder's
name and address may appear on the Securities Register and (ii) in the case
of the Common Securityholder or the Depositor, to Texas Utilities Electric
Company, Energy Plaza, 1601 Bryan Street, Dallas, Texas 75201, Attention:
Treasurer, facsimile no. 214-812-[ ], with a copy to the Secretary,
facsimile no. 214-812-[ ]. Such notice, demand or other communication to
or upon a Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision
of this Trust Agreement is required or permitted to be given or served to
or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the
Property Trustee or the Delaware Trustee, The Bank of New York, 101 Barclay
Street, 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 Administrative Trustees, at the address above for
notice to the Depositor, marked "Attention: Administrative Trustees for TU
Electric 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 stopped and precluded therefrom and such
other defenses, if any, as counsel for the Property Trustee or the Trust
may assert. The provisions of this Section 10.09 shall survive the
termination of this Trust Agreement.
Section 10.10. Conflict with Trust Indenture Act. (a) This
Trust Agreement is subject to the provisions of the Trust Indenture Act
that are required to be part of this Trust Agreement and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such
required provision shall control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity
securities representing interests in the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE
AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
IN WITNESS WHEREOF, the parties have caused this Amended and Restated Trust
Agreement to be duly executed, all as of the day and year first above
written.
TEXAS UTILITIES ELECTRIC COMPANY
By:_____________________________________
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:_____________________________________
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:_____________________________________
Title:
___________________________________
Wayne Patterson
solely in his capacity as
Administrative Trustee
___________________________________
Cathryn Hulen
solely in her capacity as
Administrative
Trustee
___________________________________
Michael Perkins
solely in his capacity as
Administrative Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
TU ELECTRIC CAPITAL I
THIS CERTIFICATE OF TRUST of TU Electric Capital I (the "Trust"),
dated as of September __, 1995, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware
Business Trust Act (12 Del. C. ss. 3801, et seq.).
------- -------
1. Name. The name of the business trust being formed hereby is
TU Electric Capital 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), WAYNE PATTERSON,
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By:______________________ By:______________________
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1
Certificate Evidencing Common Securities
of
TU Electric Capital I
Common Securities
(liquidation amount $25 per Common Security)
TU Electric Capital I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
Texas Utilities Electric Company (the "Holder") is the registered owner of
_____ (_____) common securities of the Trust representing undivided
beneficial interests in the assets of the Trust and designated the Common
Securities (liquidation amount $25 per Common Security) (the "Common
Securities"). In accordance with Section 5.10 of the Trust Agreement (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the
terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of _______ ___, 1995, as the same may be amended from time
to time (the "Trust Agreement"), including the designation of the terms of
the Common Securities as set forth therein. The Trust will furnish a copy
of the Trust Agreement to the Holder without charge upon written request to
the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate this ____ day of _________, 1995.
TU Electric Capital I
By: _____________________________________
not in his (her) individual capacity,
but solely as Administrative Trustee
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
Filed as Exhibit 4(d)
<PAGE>
EXHIBIT D
FORM OF PREFERRED SECURITIES
Filed as Exhibit 4(f)
Exhibit 4(b)
------------------------------------------
TEXAS UTILITIES ELECTRIC COMPANY
TO
THE BANK OF NEW YORK
TRUSTEE
---------
INDENTURE
(FOR UNSECURED SUBORDINATED DEBT SECURITIES
RELATING TO TRUST SECURITIES)
DATED AS OF ______________, 1995
------------------------------------------
<PAGE>
i
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 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>
ii
Security Register and Security
Registrar............................ 6
Senior Indebtedness........................... 6
Special Record Date........................... 6
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............................ 10
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................... 12
SECTION 112. Governing Law........................... 12
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........................... 17
SECTION 303. Execution, Authentication, Delivery
and Dating.......................... 18
SECTION 304. Temporary Securities.................... 19
SECTION 305. Registration, Registration of Transfer
and Exchange........................ 20
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities................... 21
SECTION 307. Payment of Interest; Interest
Rights Preserved.................... 22
SECTION 308. Persons Deemed Owners................... 23
SECTION 309. Cancellation by Security Registrar...... 23
SECTION 310. Computation of Interest................. 24
SECTION 311. Extension of Interest Payment........... 24
SECTION 312. Additional Interest..................... 24
<PAGE>
iii
ARTICLE FOUR.................................................... 24
Redemption of Securities........................................ 24
SECTION 401. Applicability of Article................. 25
SECTION 402. Election to Redeem; Notice to Trustee.... 25
SECTION 403. Selection of Securities to Be Redeemed... 25
SECTION 404. Notice of Redemption..................... 26
SECTION 405. Securities Payable on Redemption Date.... 27
SECTION 406. Securities Redeemed in Part.............. 27
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......................... 28
ARTICLE SIX..................................................... 29
Covenants....................................................... 29
SECTION 601. Payment of Principal, Premium and
Interest............................. 29
SECTION 602. Maintenance of Office or Agency.......... 29
SECTION 603. Money for Securities Payments to Be
Held in Trust........................ 30
SECTION 604. Corporate Existence...................... 31
SECTION 605. Maintenance of Properties................ 31
SECTION 606. Annual Officer's Certificate as
to Compliance........................ 32
SECTION 607. Waiver of Certain Covenants.............. 32
SECTION 608. Restriction on Payment of Dividends...... 32
SECTION 609. Maintenance of Trust Existence........... 33
SECTION 610. Rights of Holders of Preferred
Securities........................... 33
ARTICLE SEVEN................................................... 33
Satisfaction and Discharge...................................... 33
SECTION 701. Satisfaction and Discharge of
Securities........................... 33
SECTION 702. Satisfaction and Discharge of Indenture.. 36
SECTION 703. Application of Trust Money............... 37
ARTICLE EIGHT................................................... 37
Events of Default; Remedies..................................... 37
SECTION 801. Events of Default........................ 37
SECTION 802. Acceleration of Maturity; Rescission
and Annulment........................ 39
SECTION 803. Collection of Indebtedness and Suits
for Enforcement by Trustee........... 40
SECTION 804. Trustee May File Proofs of Claim......... 40
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities............. 41
SECTION 806. Application of Money Collected........... 41
<PAGE>
iv
SECTION 807. Limitation on Suits...................... 42
SECTION 808. Unconditional Right of Holders to
Receive Principal, Premium and
Interest............................. 43
SECTION 809. Restoration of Rights and Remedies....... 43
SECTION 810. Rights and Remedies Cumulative........... 43
SECTION 811. Delay or Omission Not Waiver............. 43
SECTION 812. Control by Holders of Securities......... 43
SECTION 813. Waiver of Past Defaults.................. 44
SECTION 814. Undertaking for Costs.................... 44
SECTION 815. Waiver of Stay or Extension Laws......... 45
ARTICLE NINE.................................................... 45
The Trustee..................................................... 45
SECTION 901. Certain Duties and Responsibilities...... 45
SECTION 902. Notice of Defaults....................... 45
SECTION 903. Certain Rights of Trustee................ 46
SECTION 904. Not Responsible for Recitals or
Issuance of Securities............... 47
SECTION 905. May Hold Securities...................... 47
SECTION 906. Money Held in Trust...................... 47
SECTION 907. Compensation and Reimbursement........... 47
SECTION 908. Disqualification; Conflicting Interests.. 48
SECTION 909. Corporate Trustee Required; Eligibility.. 49
SECTION 910. Resignation and Removal; Appointment
of Successor......................... 49
SECTION 911. Acceptance of Appointment by Successor... 51
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business............... 52
SECTION 913. Preferential Collection of Claims
Against Company...................... 53
SECTION 914. Co-trustees and Separate Trustees........ 53
SECTION 915. Appointment of Authenticating Agent...... 54
ARTICLE TEN..................................................... 56
Holders' Lists and Reports by Trustee and Company............... 56
SECTION 1001. Lists of Holders........................ 56
SECTION 1002. Reports by Trustee and Company.......... 57
ARTICLE ELEVEN.................................................. 57
Consolidation, Merger, Conveyance or Other Transfer ............ 57
SECTION 1101. Company May Consolidate, etc.,
Only on Certain Terms................ 57
SECTION 1102. Successor Corporation Substituted....... 58
ARTICLE TWELVE.................................................. 58
Supplemental Indentures......................................... 58
SECTION 1201. Supplemental Indentures Without
Consent of Holders................... 58
SECTION 1202. Supplemental Indentures With
Consent of Holders................... 60
<PAGE>
v
SECTION 1203. Execution of Supplemental Indentures.... 61
SECTION 1204. Effect of Supplemental Indentures....... 61
SECTION 1205. Conformity With Trust Indenture Act..... 62
SECTION 1206. Reference in Securities to
Supplemental Indentures.............. 62
SECTION 1207. Modification Without Supplemental
Indenture............................ 62
ARTICLE THIRTEEN................................................ 62
Meetings of Holders; Action Without Meeting..................... 62
SECTION 1301. Purposes for Which Meetings May Be
Called............................... 62
SECTION 1302. Call, Notice and Place of Meetings...... 63
SECTION 1303. Persons Entitled to Vote at Meetings.... 63
SECTION 1304. Quorum; Action.......................... 63
SECTION 1305. Attendance at Meetings; Determination
of Voting Rights; Conduct and
Adjournment of Meetings.............. 64
SECTION 1306. Counting Votes and Recording
Action of Meetings.................... 65
SECTION 1307. Action Without Meeting.................. 66
ARTICLE FOURTEEN................................................ 66
Immunity of Incorporators, Stockholders, Officers
and Directors........................ 66
SECTION 1401. Liability Solely Corporate.............. 66
ARTICLE FIFTEEN................................................. 67
Subordination of Securities..................................... 67
SECTION 1501. Securities Subordinate to Senior
Indebtedness......................... 67
SECTION 1502. Payment Over of Proceeds of Securities.. 67
SECTION 1503. Disputes with Holders of Certain
Senior Indebtedness.................. 69
SECTION 1504. Subrogation............................. 69
SECTION 1505. Obligation of the Company
Unconditional........................ 70
SECTION 1506. Priority of Senior Indebtedness
Upon Maturity........................ 70
SECTION 1507. Trustee as Holder of Senior
Indebtedness......................... 70
SECTION 1508. Notice to Trustee to Effectuate
Subordination........................ 71
SECTION 1509. Modification, Extension, etc. of
Senior Indebtedness.................. 71
SECTION 1510. Trustee Has No Fiduciary Duty to
Holders of Senior Indebtedness....... 71
SECTION 1511. Paying Agents Other Than the Trustee.... 72
SECTION 1512. Rights of Holders of Senior
Indebtedness Not Impaired............ 72
SECTION 1513. Effect of Subordination Provisions;
Termination.......................... 72
Testimonium.............................................................. 73
Signatures and Seals..................................................... 74
Acknowledgements......................................................... 75
<PAGE>
TEXAS UTILITIES ELECTRIC COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AN INDENTURE, DATED AS OF ______________________, 1995
TRUST INDENTURE ACT SECTION INDENTURE SECTION
ss.310 (a)(1).......................................................909
(a)(2).......................................................909
(a)(3).......................................................914
(a)(4)..............................................Not Applicable
(b)..........................................................908
910
ss.311 (a)..........................................................913
(b)..........................................................913
(c)..........................................................913
ss.312 (a).........................................................1001
(b).........................................................1001
(c).........................................................1001
ss.313 (a).........................................................1002
(b).........................................................1002
(c).........................................................1002
ss.314 (a).........................................................1002
(a)(4).......................................................606
(b).................................................Not Applicable
(c)(1).......................................................102
(c)(2).......................................................102
(c)(3)..............................................Not Applicable
(d).................................................Not Applicable
(e)..........................................................102
ss.315 (a)..........................................................901
903
(b)..........................................................902
(c)..........................................................901
(d)..........................................................901
(e)..........................................................814
ss.316 (a)..........................................................812
813
(a)(1)(A)....................................................802
812
(a)(1)(B)....................................................813
(a)(2)..............................................Not Applicable
(b)..........................................................808
ss.317 (a)(1).......................................................803
(a)(2).......................................................804
(b)..........................................................603
ss.318 (a)..........................................................107
<PAGE>
INDENTURE, dated as of _________________, between TEXAS
UTILITIES ELECTRIC COMPANY, a corporation duly organized and existing under the
laws of the State of Texas (herein called the "Company"), having its principal
office at Energy Plaza, 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 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
<PAGE>
-2-
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
<PAGE>
-3-
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
<PAGE>
-4-
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 dated as of _______________,
1995, delivered from the Company to _______________________, as trustee, for the
benefit of the holders of Preferred Securities.
"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 by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with
Section 701; and
<PAGE>
-5-
(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
<PAGE>
-6-
(to the extent lawful) to evidence the same debt as the mutilated, destroyed,
lost or stolen Security.
"Preferred Securities" means any preferred trust interests issued by
the Trust or similar securities issued by a permitted successors to the Trust in
accordance with the Trust Agreement.
"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.
<PAGE>
-7-
"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 TU Electric Capital I, a statutory business trust formed
under the laws of the State of Delaware, or any permitted successor under the
Trust Agreement.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated
as of ______________, 1995, among the Company, as Depositor, and the trustees
named therein as it 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 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;
<PAGE>
-8-
(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 employee or agent 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
<PAGE>
-9-
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 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
<PAGE>
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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, telex 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
<PAGE>
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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
New York, New York 10286
Attention:
Telephone:
Telecopy:
If to the Company, to:
Texas Utilities Electric Company
Energy Plaza
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, telex or other direct
written electronic means, on the date of transmission, and if transmitted by
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.
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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 Securities remain
outstanding, the holders of such Preferred 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.
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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, 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.
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Unless otherwise specified as contemplated by Section 301, 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.
---------------------------------
as Trustee
By: _____________________________
Authorized Officer
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 the Trust in exchange for
securities of the Company or to evidence loans by the Trust of the proceeds of
the issuance of Preferred Securities of the Trust plus the amount deposited by
the Company with the 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
<PAGE>
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Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the 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 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 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;
<PAGE>
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(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 composite 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 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;
<PAGE>
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(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; and
(v) 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.
<PAGE>
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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 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 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
<PAGE>
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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).
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.
<PAGE>
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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
<PAGE>
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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 (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.
<PAGE>
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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
<PAGE>
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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 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
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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 Securities remain outstanding, if the
Trust 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 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.
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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 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 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
Security Registrar 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 Security
Registrar 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
Security Registrar, 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 Security Registrar shall promptly notify the Company and
the Trustee 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.
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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
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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.
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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 or Outstanding Securities purchased by the Company, 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;
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(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.
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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 sum 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;
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(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 default, 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
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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 __________________ in each year, commencing
_______________, 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 the Trust holds Securities of any series, the 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 Securities affected,
obtained as provided in the Trust Agreement.
SECTION 608. RESTRICTION ON PAYMENT OF DIVIDENDS.
So long as any Preferred 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
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guarantee payments with respect to the foregoing (other than payments under the
Guarantee) if at such time (a) the Company shall be in default with respect to
its payment or other obligations under the Guarantee, (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 Securities of any series remain
outstanding, the Company shall (i) maintain direct or indirect ownership of all
interests in the Trust other than such Preferred Securities, (ii) not
voluntarily (to the extent permitted by law) dissolve, liquidate or wind up the
Trust, except in connection with a distribution of the Securities to the holders
of the Preferred Securities in liquidation of the Trust, (iii) remain the sole
Depositor under the Trust Agreement (the "Depositor") of the Trust and timely
perform in all material respects all of its duties as Depositor of the Trust,
and (iv) use reasonable efforts to cause the 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 the Trust; and
provided further that the Company may permit the Trust to consolidate or merge
with or into another business trust or other permitted successor under the Trust
Agreement 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 SECURITIES.
The Company agrees that, for so long as any Preferred
Securities remain outstanding, its obligations under this Indenture will also be
for the benefit of the holders from time to time of Preferred 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 Securities held a
principal amount of Securities equal to the stated liquidation amount of the
Preferred 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
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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 Security Registrar 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 Obligations, or both,
in accordance with this Section, together with the documents required by clauses
(x), (y) and (z)
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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.
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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.
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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 purpose, shall, to the extent practicable, 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 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 interest 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
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(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 60 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
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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 due to certain events of bankruptcy,
insolvency or reorganization of the Company 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).
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 at the rate or rates
prescribed therefor in such Securities;
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(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 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 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
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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 Article 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;
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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 not less than 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.
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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
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
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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. 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 the Trust holds the Securities of any series,
the Trust may not waive any past default without the consent of at least a
majority in aggregate liquidation preference of the outstanding Preferred
Securities affected, obtained as provided in the Trust Agreement.
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
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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.
(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) 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
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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
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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) except as otherwise provided in Section 801, the Trustee
shall not be charged with knowledge of any Event of Default 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 Event of Default or (2) written notice of
such Event of Default 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.
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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.
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 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.
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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; provided that so long as any Preferred Securities remain outstanding,
the Trust shall not execute any Act to remove
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the Trustee without the consent of the holders of a majority in aggregate
liquidation preference of Preferred Securities outstanding, obtained as provided
in the Trust Agreement.
(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.
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(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 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
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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.
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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.
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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
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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
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
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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.
------------------------
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 _______ and ___________ in each
year, commencing _______________, 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.
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SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than _____________ in each year, commencing
_______________, the Trustee shall transmit to the Holders and the Commission a
report, dated as of the next preceding _______________, 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 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.
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
corporation, or convey or otherwise transfer or lease its properties and assets
substantially as an entirety to any Person, unless
(a) the corporation 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 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 performed 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.
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SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the
Company into any other corporation 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 corporation 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
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(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 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
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(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 not less than 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 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
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(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,
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) and
1201(h).
Notwithstanding the foregoing, so long as any of the Preferred Securities remain
outstanding, the Trustee may not consent to a supplemental indenture under this
Section 1202 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 Securities 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 Preferred 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
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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.
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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 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 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
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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 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 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.
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(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
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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, STOCKHOLDERS, 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, stockholder, 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, stockholder, 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.
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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, 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;
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(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.
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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. Upon the payment in full of all Senior
Indebtedness, 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
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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 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.
<PAGE>
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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.
<PAGE>
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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>
-73-
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
TEXAS UTILITIES ELECTRIC COMPANY
By:________________________________
THE BANK OF NEW YORK, Trustee
By:_________________________________
<PAGE>
-74-
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, 1995, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is the _________________________ of Texas Utilities Electric Company,
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
[Notarial Seal]
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of ____________, 1995, 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
[Notarial Seal]
Exhibit 4(c)
GUARANTEE AGREEMENT
Between
Texas Utilities Electric Company
(as Guarantor)
and
dated as of
_____________ ___, 1995
<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 Securities................... 4
SECTION 2.03 Reports by the Guarantee Trustee................. 4
SECTION 2.04 Periodic Reports to Guarantee Trustee............ 4
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........ 5
SECTION 3.01 Powers and Duties of the Guarantee Trustee....... 5
SECTION 3.02 Certain Rights of Guarantee Trustee.............. 7
ARTICLE IV GUARANTEE TRUSTEE..................................... 9
SECTION 4.01 Guarantee Trustee; Eligibility................... 9
SECTION 4.02 Appointment, Removal and Resignation of
Guarantee Trustee................................ 10
ARTICLE V GUARANTEE.................................................. 10
SECTION 5.01 Guarantee........................................ 10
SECTION 5.02 Waiver of Notice and Demand...................... 10
SECTION 5.03 Obligations Not Affected......................... 11
SECTION 5.04 Rights of Holders................................ 11
SECTION 5.05 Guarantee of Payment............................. 12
SECTION 5.06 Subrogation...................................... 12
SECTION 5.07 Independent Obligations.......................... 12
ARTICLE VI SUBORDINATION......................................... 12
SECTION 6.01 Subordination.................................... 12
ARTICLE VII TERMINATION........................................... 13
SECTION 7.01 Termination...................................... 13
ARTICLE VIII MISCELLANEOUS......................................... 13
SECTION 8.01 Successors and Assigns........................... 13
SECTION 8.02 Amendments....................................... 13
SECTION 8.03 Notices.......................................... 13
SECTION 8.04 Benefit.......................................... 14
SECTION 8.05 Interpretation................................... 14
SECTION 8.06 Governing Law.................................... 16
<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
__________ __, 1995, is executed and delivered by Texas Utilities Electric
Company, 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 Securities (as defined
herein) of TU Electric Capital I, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of _________ __, 1995 among the Trustees of
the Issuer named therein and Texas Utilities Electric Company, as
Depositor, the Issuer is issuing as of the date hereof $___________
aggregate liquidation amount of its ____% Trust Originated Preferred
Securities (the "Preferred Securities") representing ownership interests in
the Issuer and having the terms set forth in the Trust Agreement;
WHEREAS, the proceeds of the Preferred Securities to be issued by
the Issuer in exchange for the Debentures (as defined in the Trust
Agreement); and
WHEREAS, in order to enhance the value of the Preferred
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 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
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 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 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 a redemption of all of the Preferred Securities),
the lesser of (a) the aggregate of the liquidation amount and all accrued
and unpaid Distributions on the Preferred Securities to the date of
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 Securities then outstanding;
provided, however, that in determining whether the holders of the requisite
percentage of Preferred Securities have given any request, notice, consent
or waiver hereunder, "Holder" shall not include the Guarantor or any
Affiliate of the Guarantor.
"Indenture" means the Indenture dated as of __________, 1995,
among the Guarantor (the "Debenture Issuer") and The Bank of New York, as
trustee.
"Majority in liquidation amount of the Securities" means a vote
by Holders, voting separately as a class, of more than 50% of the aggregate
liquidation amount of all Preferred Securities.
"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 Guarantor, and delivered to the Guarantee
Trustee. Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this Guarantee 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.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"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.
"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 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 Securities.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, not later than [___________] and
[_________] 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), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.03 Reports by the Guarantee Trustee. Within 60 days
after [______] of each year, the Guarantee Trustee shall provide to the
Holders such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the
Trust Indenture Act. The Guarantee Trustee shall also comply with the
requirements of Section 313(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 as required by Section 314 (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.05 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to
be given by an officer pursuant to Section 314(c)(1) of the Trust Indenture
Act may be given in the form of an Officers' Certificate.
SECTION 2.06 Events of Default; Waiver. The Holders of a
Majority in liquidation amount of Preferred 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 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 the Guarantee Trustee shall have received
written notice, or 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 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) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of
the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically
set forth in this Guarantee Agreement, and no implied covenants 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), 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.
(d) 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
(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 or such Responsible Officer 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 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 personal financial liability in the performance
of any of its duties 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 against such risk or liability is
not reasonably assured to it.
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
Officers' 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
Officers' 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
accordance with 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 of
an Event of Default, of its obligation 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
reasonably believed by it to be genuine, 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; and
(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, (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 acting in accordance with such instructions;
(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.
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 4.02(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 Appointment, Removal and Resignation of Guarantee
Trustee.
(a) Subject to Section 4.02(b), 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 4.02 within 60 days
after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee 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.
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
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 Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with, the
Preferred 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 Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Preferred 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
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 Holders to give notice to, or obtain
consent of, the Guarantor 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) 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 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) if the Guarantee Trustee fails to enforce this
Guarantee Agreement as above provided, any Holder may, after a period of 30
days has elapsed from such Holder's written request to the Guarantee
Trustee to enforce this Guarantee Agreement, institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement and the Guarantee Trustee's failure to so enforce this Guaranty
Agreement, without first instituting a legal proceeding against the Issuer
or any other person or entity.
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 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.
ARTICLE VII
TERMINATION
SECTION 7.01 Termination. This Guarantee Agreement shall
terminate and be of no further force and effect upon: (i) full payment of
the Redemption Price of all Preferred 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 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 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 Securities then
outstanding. Except in connection with a consolidation, merger or sale
involving the Guarantor that is permitted under Article [____] of the
Indenture, the Guarantor shall not assign its obligations hereunder.
SECTION 8.02 Amendments. Except with respect to any changes
which do not 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 Securities.
The provisions of Article Six of the Trust Agreement concerning meetings of
Holders shall apply to the giving of such approval.
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 Holders
of the Preferred Securities:
Texas Utilities Electric Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Facsimile No: 214-812-[____]
Attention: Treasurer
(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 to the Holders:
TU Electric Capital I
c/o Texas Utilities Electric Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Facsimile No: 214-812-[____]
Attention: Administrative Trustees
(c) if given to the Guarantee Trustee, to the address set forth
below or such other address as the " " may give notice of to the
Holders of the Preferred Securities:
The Bank of New York
101 Barclay Street
21 West
New York, New York 10286
Facsimile No:
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 Preferred Securities.
SECTION 8.05 Interpretation. In this Guarantee Agreement,
unless the context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned
to them in Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has the
same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
(e) 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;
(f) a reference to the singular includes the plural and vice
versa; and
(g) 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.
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
Texas Utilities Electric Company
By: _____________________________
Name:
Title:
The Bank of New York,
as Guarantee Trustee
By: ____________________________
Name:
Title:
Exhibit 4(d)
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1995, between Texas
Utilities Electric Company, a Texas corporation ("TU Electric"),
and TU Electric Capital I, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue its Common
Securities (the "Common Securities") to and receive Debentures
from TU Electric and to issue its ___% Trust Originated Preferred
Securities, Series A (the "Preferred 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 ________ __, 1995 as the same may be amended
from time to time (the "Trust Agreement");
WHEREAS, TU Electric is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance by
each holder of the Preferred Securities, which acceptance TU
Electric hereby agrees shall benefit TU Electric and which
acceptance TU Electric acknowledges will be made in reliance upon
the execution and delivery of this Agreement, TU Electric,
including in its capacity as holder of the Common Securities, and
the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by TU Electric. Subject to
-------------------------
the terms and conditions hereof, TU Electric 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 (i) obligations of the Trust to pay to holders of any
Preferred Securities or other similar interests in the Trust the
amounts due such holders pursuant to the terms of the Preferred
Securities or such other similar interests, as the case may be
and (ii) obligations arising out of the negligence, willful
misconduct or bad faith of the Trustees of the Trust. 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 Securities or any Beneficiary must restore payment of
any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof
by TU Electric 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. TU Electric hereby
----------------
waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply, and TU Electric
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 TU Electric 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
or, or other similar proceedings affecting, the Trust or any of
the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, TU Electric with respect to the
happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
-----------
this Agreement directly against TU Electric and TU Electric
waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding
against TU Electric.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and
--------------
agreements contained in this Agreement shall bind the successors,
assigns, receivers, trustees and representatives of TU Electric
and shall inure to the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
---------
Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred 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:
TU Electric Capital I
c/o [Trustee]
Facsimile No.:
Attention:
Texas Utilities Electric Company
Facsimile No.:
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.
TEXAS UTILITIES ELECTRIC COMPANY
By: ---------------------------
Name:
Title:
TU ELECTRIC CAPITAL I
By:
---------------------------
Wayne Patterson
not in his individual
capacity, but solely
as Administrative Trustee
---------------------------
Cathryn Hulen
not in her individual
capacity, but solely
as Administrative Trustee
---------------------------
Michael Perkins
not in his individual
capacity, but solely
as Administrative Trustee
Exhibit 4(e)
TEXAS UTILITIES ELECTRIC COMPANY
OFFICER'S CERTIFICATE
________________, the _______________ of Texas Utilities
Electric Company (the "Company"), pursuant to the authority
granted in the Board Resolutions of the Company dated
____________, 1995, and Section 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 ___________, 1995 (the "Indenture") that:
1. The securities of the first series to be issued under
the Indenture shall be designated "___% Junior
Subordinated Debentures, Series A, due ____" (the
"Debentures of the First 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 First Series shall be limited in
aggregate principal amount to $__________ at any time
Outstanding, except as contemplated in Section 301(b)
of the Indenture;
3. The Debentures of the First 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 First Series shall bear interest
from the date of original issuance, at the rate of ___%
per annum payable quarterly in arrears on March 31,
June 30, September 30 and December 31 of each year
(each, an "Interest Payment Date") commencing
__________, 1995. 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 on the basis of
the actual number of days elapsed within any month in
relation to the deemed 30 days of such month. Interest
on the Debentures of the First Series will accrue from
the date of original issuance but if interest has been
paid on such Debentures of the First Series, then from
the most recent Interest Payment Date through 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), except that, if such Business
Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding
Business Day, in each case with the same force and
effect as if made on such Interest Payment Date;
5. Each installment of interest on a Debenture of the
First Series shall be payable to the Person in whose
name such Debenture of the First Series is registered
at the close of business on the day 15 days preceding
the corresponding Interest Payment Date (the "Regular
Record Date") for the Debentures of the First Series;
provided, however, that if the Debentures of the First
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 First Series not punctually paid
or duly provided for shall forthwith cease to be
payable to the Holders of such Debentures of the First
Series on such Regular Record Date, and may be paid to
the Persons in whose name the Debentures of the First
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 First
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
First 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 First Series shall be payable at, and
registration of transfer, exchanges in respect of the
Debentures of the First Series may be effected at, the
office or agency of the Company in the City of Dallas;
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. Notices, demands to or
upon the Company in respect of the Debentures of the
First Series may be served at the office or agency of
the Company in The City of New York. The Trustee will
initially be the agency of the Company for the
foregoing purposes; provided, however, that the Company
reserves the right to change, by one or more Officer's
Certificates any such office or agency. The Company
will be the Security Registrar for the Debentures of
the First Series;
7. The Debentures of the First 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, at a redemption price equal to 100% of the
principal amount of the Debentures of the First Series
being redeemed, together with any accrued interest,
including Additional Interest, if any, to the
redemption date, upon not less than 30 nor more than 60
days' notice. The Company, however, may not redeem
less than all Outstanding Debentures of the First
Series unless the conditions specified in the second
paragraph of item 8 below are met;
8. The Debentures of the First Series will also be
redeemable at the option of the Company if a Tax Event
shall occur and be continuing, in whole or in part, at
a redemption price plus accrued and unpaid
distributions equal to 100% of the principal amount of
the Debentures of the First Series then Outstanding
plus any accrued and unpaid interest, including
Additional Interest, if any, to the redemption date,
upon not less than 30 nor more than 60 days' notice.
"Tax Event" means any event or events as a result of
which, 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 First Series, (ii) interest
payable by the Company on the Debentures of the First
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;
The Company may not redeem less than all the Debentures
of the First Series unless all accrued and unpaid
interest (including any Additional Interest) has been
paid in full on all Debentures Outstanding under the
Indenture for all quarterly interest periods
terminating on or prior to the date of redemption. No
notice of redemption with respect to the Debentures may
state that such redemption shall be conditional upon
the receipt of certain moneys as contemplated in the
third paragraph of Section 404 of the Indenture;
9. The Debentures of the First Series shall be issuable in
denominations of $__ and any integral multiple thereof;
10. So long as any Debentures of the First Series are
Outstanding, the failure of the Company to pay interest
on any Debentures of the First 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 (11) of this Certificate shall not constitute
a failure to pay interest for this purpose;
11. 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 First Series,
to extend the interest payment period to a period not
exceeding 20 consecutive quarters (an "Extension
Period") during which period interest will be
compounded quarterly. 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 First Series,
compounded quarterly, 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 First Series, or make any guarantee payments with
respect to the foregoing. 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 20
consecutive quarters at any one time or extend beyond
the maturity date of the Debentures of the First
Series. 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
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 New York Stock Exchange
or other applicable self-regulatory organization of the
record date;
12. In the event that, at any time subsequent to the
initial authentication and delivery of the Debentures
of the First Series, the Debentures of the First 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 First
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 First 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. In the event that the Debentures of the First Series
are distributed to holders of ____% Trust Originated
Preferred Securities as a result of the occurrence of a
Tax Event, the Company will use its best efforts to
list the Debentures of the First Series on the New York
Stock Exchange;
16. The undersigned has read all of the covenants or
conditions contained in Sections 303, 301, 201 and 102
of the Indenture relating to the issuance of the
Debentures of the First Series and the definitions in
the Indenture relating thereto;
17. 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;
18. In the opinion of the undersigned, he has made such
examination or investigation as is necessary to express
an informed opinion whether or not such covenants or
conditions have been complied with; and
19. In the opinion of the undersigned, such covenants or
conditions have been complied with.
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this ____ day of _________________, 1995.
_____________________________
Name:
Title:
<PAGE>
No._______________
Cusip No.__________
EXHIBIT A
[FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE]
TEXAS UTILITIES ELECTRIC COMPANY
__% JUNIOR SUBORDINATED DEBENTURES, SERIES A
TEXAS UTILITIES ELECTRIC COMPANY, a corporation duly
organized and existing under the laws of the State Texas (herein
referred to as the "Company", which term includes any successor
Person under the Indenture), for value received, hereby promises
to pay to ____________________________________, or registered
assigns, the principal sum of ____________________ Dollars on
__________,____, and to pay interest on said principal sum from
_________,1995 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, quarterly on
March 31, June 30, September 30 and December 31 of each year,
commencing ________, 1995 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), 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 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 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 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 [the City of
Dallas, the State of Texas], 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.
TEXAS UTILITIES ELECTRIC COMPANY
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 _______, 1995 (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 ___________, 1995 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 100%
of the principal amount, together in the case of any such
redemption with accrued interest to, but not including, the
Redemption Date, but 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.
The Debentures of the First Series will also be
redeemable at the option of the Company if a Tax Event shall
occur and be continuing, in whole or in part, at a redemption
price plus accrued and unpaid distributions equal to 100% of the
principal amount of the Debentures of the First Series then
Outstanding plus any accrued and unpaid interest, including
Additional Interest, if any, to the redemption date, upon not
less than 30 nor more than 60 days' notice. "Tax Event" means
any event or events as a result of which, 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 First Series, (ii) interest
payable by the Company on the Debentures of the First 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.
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.
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 20
consecutive quarters (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 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 20 consecutive quarters 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 the Indenture.
The Securities of this series are issuable only in
registered form without coupons in denominations of $25 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(f)
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
TU Electric Capital I
___% Trust Originated Preferred Securities
liquidation amount $25 per Preferred Security)
TU Electric Capital I, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"),
hereby certifies that ____________ (the "Holder") is the
registered owner of _____ (_____) preferred securities of the
Trust representing an undivided beneficial interest in the assets
of the Trust and designated the TU Electric Capital I ___% Trust
Originated Preferred Securities, Series A (liquidation amount $25
per Preferred Security) (the "Preferred Securities"). The
Preferred 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 of the Trust Agreement
(as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and
the Preferred Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of
_______ ___, 1995, as the same may be amended from time to time
(the "Trust Agreement") including the designation of the terms of
Preferred Securities as set forth therein. The holder of this
certificate is entitled to the benefits of the Guarantee
Agreement of Texas Utilities Electric Company, a Texas
corporation, and The Bank of New York, as guarantee trustee,
dated as of _______ ___, 1995 (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 this ____ day of
_________, 1995.
TU ELECTRIC CAPITAL I
By:
-------------------------
not in his (her)
individual capacity, but
solely as Administrative
Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Security to:
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Insert assignee's social security or tax identification number)
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
____________________________________________________________
____________________________________________________________
____________________________________________________________
agent to transfer this Preferred Security Certificate on the
books of the Trust. The agent may substitute another to act for
him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
Exhibit 5(a)
WORSHAM, FORSYTHE & WOOLDRIDGE, L.L.P.
1601 Bryan Street
Dallas, Texas 75201
October 18, 1995
Texas Utilities Electric Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Ladies and Gentlemen:
Reference is made to Registration Statement No.
33-63031 (Registration Statement) on Form S-4 filed by Texas
Utilities Electric Company (Company) on September 28, 1995, with
the Securities and Exchange Commission under the Securities Act
of 1933, as amended, for the registration of Trust Originated
Preferred Securities (Preferred Securities) of TU Electric
Capital I (Trust) having an aggregate liquidation preference of
up to $356,825,000, such Preferred Securities to be offered in
exchange for certain outstanding securities of the Company; of a
Guarantee of the Company with respect to the Preferred
Securities; and of up to $356,825,000 in aggregate principal
amount of the Company's Junior Subordinated Debentures
(Debentures) to be issued and delivered to the Trust pursuant to
the terms of an indenture from the Company to The Bank of New
York, as trustee (Indenture) in exchange for the Preferred
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. 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.
2. All requisite action necessary to make the Debentures
valid, legal and binding obligations 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 Debentures, the Indenture shall have been executed and
delivered, and the Debentures shall have been issued and
delivered in exchange for the Preferred Securities,
in each case, except as such may be limited by bankruptcy,
insolvency or other laws affecting creditors' rights generally
and by general principles of equity.
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 such Registration Statement and as authority for
certain of the statements contained, or incorporated by
reference, therein.
Very truly yours,
WORSHAM, FORSYTHE &
WOOLDRIDGE, L.L.P.
/s/ Timothy A. Mack
By: --------------------
A Partner
Exhibit 5(b) and 8
Reid & Priest LLP
40 West 57th Street
New York, New York 10019
October 18, 1995
Texas Utilities Electric Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Ladies and Gentlemen:
Reference is made to Registration Statement No.
33-63031 (Registration Statement) on Form S-4 filed by Texas
Utilities Electric Company (Company) on September 28, 1995, with
the Securities and Exchange Commission under the Securities Act
of 1933, as amended, for the registration of Trust Originated
Preferred Securities (Preferred Securities) of TU Electric
Capital I (Trust) having an aggregate liquidation preference of
up to $356,825,000, such Preferred Securities to be offered in
exchange for certain outstanding securities of the Company; of a
Guarantee of the Company with respect to the Preferred
Securities; and of up to $356,825,000 in aggregate principal
amount of the Company's Junior Subordinated Debentures
(Debentures) to be issued and delivered to the Trust pursuant to
the terms of an indenture from the Company to The Bank of New
York, as trustee (Indenture) in exchange for the Preferred
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. 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.
2. All requisite action necessary to make the Debentures
valid, legal and binding obligations 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 Debentures, the Indenture shall have been executed and
delivered, and the Debentures shall have been issued and
delivered in exchange for the Preferred Securities,
in each case, except as such may be limited by bankruptcy,
insolvency or other laws affecting creditors' rights generally
and by general principles of equity.
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" 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.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
Exhibit 5(c)
[Letterhead of Richards, Layton & Finger]
October 18, 1995
TU Electric Capital I
c/o Texas Utilities Electric Company
1601 Bryan Street
Dallas, TX 75201
Re: TU Electric Capital I
----------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for
Texas Utilities Electric Company, a Texas corporation
("Texas Utilities"), and TU Electric 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 September 28, 1995 (the "Certificate"), as filed in
the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on September 28, 1995;
(b) The Trust Agreement of the Trust, dated as
of September 28, 1995, between Texas Utilities and the
trustees of the Trust named therein;
(c) The Registration Statement (the "Original
Registration Statement") on Form S-4, including a
preliminary prospectus (the "Prospectus"), relating to the
____% Trust Originated Preferred Securities of the Trust
representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as filed by
Texas Utilities and the Trust with the Securities and
Exchange Commission on September 28, 1995, as amended by an
Amendment No.1 to the Original Registration Statement
<PAGE>
TU Electric Capital I -2- October 18, 1995
("Amendment No.1"), as proposed to be filed by Texas
Utilities and the Trust with the Securities and Exchange
Commission on October 18, 1995 (the Original Registration
Statement as amended by Amendment No.1 is hereinafter
referred to as the "Registration Statement");
(d) A form of Amended and Restated Trust
Agreement of the Trust, to be entered into among Texas
Utilities, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits B
and D thereto) (the "Trust Agreement"), attached as an
exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the
Trust, dated October 18, 1995, 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
<PAGE>
TU Electric Capital I -3- October 18, 1995
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) 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
Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a
Preferred 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 Registration Statement, and
(vii) that the Preferred Securities are issued and sold to
the Preferred 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 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.
<PAGE>
TU Electric Capital I -4- October 18, 1995
2. The Preferred 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 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 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 "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
EXHIBIT 12 (a)
TEXAS UTILITIES ELECTRIC COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
TME Year Ended December 31,
September --------------------------------------------------------
1995 1994 1993 1992 1991 1990
---------- ---- ---- ---- ---- ----
Thousands of Dollars, Except Ratios
<S> <C> <C> <C> <C> <C> <C>
FIXED CHARGES:
Interest on mortgage bonds $ 538,954 $ 567,363 $ 610,999 $ 598,235 $ 608,729 $ 551,986
Interest on other long-term debt 42,309 32,183 45,787 54,379 61,822 92,749
Amortization of debt discount, (premium)
and expense 10,165 8,615 6,493 4,778 4,111 3,698
Amortization of loss on reaquired debt 18,791 17,608 12,471 9,301 5,052 4,635
Other interest charges 26,721 36,408 10,222 22,123 52,948 38,271
Rentals representative of the interest factor 25,045 26,017 29,637 30,828 28,737 25,545
------------ ---------- ---------- ---------- ---------- ----------
Total fixed charges $ 661,985 $ 688,194 $ 715,609 $ 719,644 $ 761,399 $ 716,884
=========== ========== ========== ========== ========== ==========
EARNINGS:
Net income $ 408,082 $ 658,192 $ 476,526 $ 821,123 $(289,173) $ 964,276
Add:
Federal income taxes 183,553 146,633 96,951 29,049 76,073 57,930
Deferred federal income taxes - net 41,254 219,752 164,487 233,125 (232,464) 45,724
Federal investment tax credits - net (21,122) (23,698) (19,698) (20,322) (53,498) 33,841
Fixed charges 661,985 688,194 715,609 719,644 761,399 716,884
----------- ---------- ---------- ---------- ---------- ----------
Total earnings $ 1,273,752 $1,689,073 $1,433,875 $1,782,619 $ 262,337 $1,818,655
=========== ========== ========== ========== ==========
RATIO OF EARNINGS TO FIXED CHARGES 1.92 2.45 2.00 2.48 0.34* 2.54
---- ---- ---- ---- ---- ----
</TABLE>
* The Company's earnings were inadequate to cover fixed charges for the
twelve months ended December 31, 1991. The deficiency was $499,062,000. The
computation of the ratio of earnings to fixed charges does not include interest
payments made by affiliated companies on senior notes, which are recovered
currently through the fuel component of rates.
<PAGE>
EXHIBIT 12(b)
TEXAS UTILITIES ELECTRIC COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
<TABLE>
<CAPTION>
TME Year Ended December 31,
September ----------------------------------------------------------------
1995 1994 1993 1992 1991 1990
--------- ---- ---- ---- ---- ----
Thousands of Dollars, Except Ratios
<S> <C> <C> <C> <C> <C> <C>
FIXED CHARGES:
Interest on mortgage bonds . . . . . . . . . . . . $ 538,954 $ 567,363 $ 610,999 $ 598,235 $ 608,729 $ 551,986
Interest on other long-term debt . . . . . . . . . 42,309 32,183 45,787 54,379 61,822 92,749
Amortization of debt discount, (premium)
and expense . . . . . . . . . . . . . . . . . 10,165 8,615 6,493 4,778 4,111 3,698
Amortization of loss on reaquired debt . . . . . . 18,791 17,608 12,471 9,301 5,052 4,635
Other interest charges . . . . . . . . . . . . . . 26,721 36,408 10,222 22,123 52,948 38,271
Rentals representative of the interest factor. . . 25,045 26,017 29,637 30,828 28,737 25,545
---------- ---------- ---------- ---------- ---------- ----------
Total fixed charges. . . . . . . . . . . . . . $ 661,985 $ 688,194 $ 715,609 $ 719,644 $ 761,399 $ 716,884
Preferred dividends* . . . . . . . . . . . . . . . . 122,353 170,938 169,683 150,727 207,747 136,161
---------- ---------- ---------- ---------- ---------- ----------
Fixed Charges and preferred dividends. . . . . . . $ 784,338 $ 859,132 $ 885,292 $ 870,371 $ 969,146 $ 853,045
========== ========== ========== ========== ========== ==========
EARNINGS:
Net income $ 408,082 $ 658,192 $ 476,526 $ 821,123 $ (289,173) $ 964,276
Add:
Federal income taxes. . . . . . . . . . . . . . 183,553 146,633 96,951 29,049 76,073 57,930
Deferred federal income taxes - net . . . . . . 41,254 219,752 164,487 233,125 (232,464) 45,724
Federal investment tax credits - net. . . . . . (21,122) (23,698) (19,698) (20,322) (53,498) 33,841
Fixed charges . . . . . . . . . . . . . . . . . 661,985 688,194 715,609 719,644 761,399 716,884
---------- ---------- ---------- ---------- ---------- ----------
Total earnings. . . . . . . . . . . . . . . $1,273,752 $1,689,073 $1,433,875 $1,782,619 $ 262,337 $1,818,655
========== ========== ========== ========== ========== ==========
RATIO OF EARNINGS TO FIXED CHARGES AND
PREFERRED DIVIDENDS. . . . . . . . . . . . . . 1.62 1.97 1.62 2.05 0.27** 2.13
</TABLE>
* Preferred dividends represent (1) the portion of preferred dividends
deductible for federal income tax purposes, plus (2) the balance of preferred
dividend requirements multiplied by the ratio that pre-tax income bears to
net income.
** The Company's earnings were inadequate to cover fixed charges and
preferred dividends for the twelve months ended December 31, 1991. The
deficiency was $706,809,000. The computation of the ratio of earnings to
fixed charges and preferred dividends does not include interest payments
made by affiliated companies on senior notes, which are recovered
currently through the fuel component of rates.
