Exhibit 4-B
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AMENDED AND RESTATED
TRUST AGREEMENT
between
DELMARVA POWER & LIGHT COMPANY, as Depositor
and
WILMINGTON TRUST COMPANY,
,
,
and
, as Trustees
Dated as of , 1996
DELMARVA POWER FINANCING I
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Delmarva Power Financing 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) . . . . . . . . . . . . . . . . . . 8.15
(a)(4) . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . 8.16
(d) . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . 1.01
Section 315(a) . . . . . . . . . . . . . . . . . . 8.01
(b) . . . . . . . . . . . . . . . . . . 8.02
(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
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Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
TABLE OF CONTENTS
ARTICLE I.
Defined Terms
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II.
Establishment of the Trust; Issuance of
Trust Securities; Rights of Securityholders
Section 2.01. Name . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.02. Office of the Property Trustee; Principal Place of
Business . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.03. Initial Contribution of Trust Property; Initial
Ownership; 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 . . . . . . . . . . . . . . . . 12
Section 2.07. Authorization to Enter into Certain Transactions . . . . 12
Section 2.08. Assets of Trust . . . . . . . . . . . . . . . . . . . . 16
Section 2.09. Title to Trust Property . . . . . . . . . . . . . . . . 16
Section 2.10. Rights of Securityholders . . . . . . . . . . . . . . . 16
ARTICLE III.
Payment Account
Section 3.01. Payment Account . . . . . . . . . . . . . . . . . . . . 16
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions . . . . . . . . . . . . . . . . . . . . . 17
Section 4.02. Redemption . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.03. Subordination of Common Securities . . . . . . . . . . . 19
Section 4.04. Payment Procedures . . . . . . . . . . . . . . . . . . . 20
Section 4.05. Tax Returns and Reports . . . . . . . . . . . . . . . . 20
Section 4.06. Payments under Subordinated Indenture . . . . . . . . . 20
ARTICLE V.
Trust Securities Certificates
Section 5.01. The Trust Securities Certificates . . . . . . . . . . . 21
Section 5.02. Ownership of Common Securities by Depositor . . . . . . 21
Section 5.03. Registration of Transfer and Exchange of Preferred
Securities Certificates . . . . . . . . . . . . . . . . 21
Section 5.04. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.05. Cancellation by Registrar. . . . . . . . . . . . . . . . 23
Section 5.06. Persons Deemed Securityholders . . . . . . . . . . . . . 23
Section 5.07. Lists of Holders. . . . . . . . . . . . . . . . . . . . 23
Section 5.08. Maintenance of Office or Agency . . . . . . . . . . . . 23
Section 5.09. Appointment of Paying Agent . . . . . . . . . . . . . . 23
Section 5.10. Book-Entry System . . . . . . . . . . . . . . . . . . . 24
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights . . . . . . . . . . . . . . 25
Section 6.02. Notice of Meetings . . . . . . . . . . . . . . . . . . . 25
Section 6.03. Meetings of Holders of Preferred Securities . . . . . . 26
Section 6.04. Voting Rights . . . . . . . . . . . . . . . . . . . . . 26
Section 6.05. Proxies, etc. . . . . . . . . . . . . . . . . . . . . . 26
Section 6.06. Securityholder Action by Written Consent . . . . . . . . 26
Section 6.07. Record Date for Voting . . . . . . . . . . . . . . . . . 27
Section 6.08. Acts of Securityholders . . . . . . . . . . . . . . . . 27
Section 6.09. Inspection of Records . . . . . . . . . . . . . . . . . 28
ARTICLE VII.
Representations and Warranties
of the Property Trustee
Section 7.01. Property Trustee . . . . . . . . . . . . . . . . . . . . 28
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities . . . . . . . . . . 29
Section 8.02. Certain Notices . . . . . . . . . . . . . . . . . . . . 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 8.06. Compensation; Fees; Indemnity. . . . . . . . . . . . . . 34
Section 8.07. Certain Trustees Required; Eligibility . . . . . . . . . 35
Section 8.09. Co-Trustees and Separate Trustee . . . . . . . . . . . . 36
Section 8.10. Resignation and Removal; Appointment of Successor . . . 37
Section 8.11. Acceptance of Appointment by Successor . . . . . . . . . 38
Section 8.12. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust . . . . . . . . . . . . . . . . . . . 39
Section 8.14. Reports by Property Trustee . . . . . . . . . . . . . . 39
Section 8.15. Reports to the Property Trustee . . . . . . . . . . . . 39
Section 8.16. Evidence of Compliance With Conditions Precedent . . . . 40
Section 8.17. Number of Trustees. . . . . . . . . . . . . . . . . . . 40
Section 8.18. Delegation of Power. . . . . . . . . . . . . . . . . . . 40
Section 8.19. Fiduciary Duty . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date . . . . . . . . . . . . 42
Section 9.02. Early Termination . . . . . . . . . . . . . . . . . . . 42
Section 9.03. Termination . . . . . . . . . . . . . . . . . . . . . . 42
Section 9.04. Liquidation . . . . . . . . . . . . . . . . . . . . . . 42
Section 9.05. Mergers, Consolidations, Amalgamations or Replacements of
the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and Assumption of
Obligations . . . . . . . . . . . . . . . . . . . . . . 45
Section 10.02. Limitation of Rights of Securityholders . . . . . . . . 45
Section 10.03. Amendment . . . . . . . . . . . . . . . . . . . . . . . 46
Section 10.04. Separability . . . . . . . . . . . . . . . . . . . . . 47
Section 10.05. Governing Law . . . . . . . . . . . . . . . . . . . . . 47
Section 10.06. Successors . . . . . . . . . . . . . . . . . . . . . . 47
Section 10.07. Headings . . . . . . . . . . . . . . . . . . . . . . . 47
Section 10.08. Notice and Demand . . . . . . . . . . . . . . . . . . . 47
Section 10.09. Agreement Not to Petition . . . . . . . . . . . . . . . 48
Section 10.10. Conflict with Trust Indenture Act . . . . . . . . . . . 48
AMENDED AND RESTATED TRUST AGREEMENT, dated as of ,
1996, between (i) Delmarva Power & Light Company, a Delaware and Virginia
corporation (the "Depositor"), (ii) Wilmington Trust Company, a banking
corporation duly organized and existing under the laws of Delaware, as
trustee (the "Property Trustee") and (iii) ,
and , each an individual, as trustee, and
each of whose address is c/o Delmarva Power & Light Company, 800 King
Street, Wilmington, Delaware 19899 (each, an "Administrative Trustee" and,
collectively, the "Administrative Trustees") (the Property Trustee and the
Administrative Trustees being hereinafter referred to collectively as the
"Trustees").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor, the Property Trustee and
, as Administrative Trustee, have heretofore duly declared and
established a business trust pursuant to the Delaware Business Trust Act by
the entering into of that certain Trust Agreement, dated as of
, 1996 (the "Original Trust Agreement"), and by the execution by the
Property Trustee and , as Administrative Trustee
and filing with the Secretary of State of the State of Delaware of the
Certificate of Trust, dated , 1996 (the "Certificate of
Trust"), a copy of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee and
, 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 additional
Administrative Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of
the other parties 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 for a given period, the amount of Additional
Interest (as defined in the Subordinated Indenture) paid by the Depositor
on a Like Amount of Debentures for such period.
"Administrative Trustee" means each of the individuals identified
as an "Administrative Trustee" in the preamble to this Trust Agreement,
solely in their capacities as Administrative Trustees of the Trust created
hereunder and not in their individual capacities, 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.
"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, liqui-
dator, 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 (a) a Saturday or a Sunday,
(b) a day on which banks in New York, New York are authorized or obligated
by law or executive order to remain closed and (c) a day on which either
the Corporate Trust Office or the Debenture Trustee's principal corporate
trust office is closed for business.
"Certificate of Trust" has the meaning specified in the preamble
to this Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the
assets of the Trust having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit B.
"Corporate Trust Office" means the principal corporate trust
office of the Property Trustee located in Wilmington, Delaware.
"Covered Person" means: (a) any officer, director, shareholder,
partner, beneficial owner, member, representative, employee or agent of the
Trust or the Trust's Affiliates; and (b) any Securityholder.
"Debenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Debenture Issuer" means Delmarva Power & Light Company, a
Delaware and Virginia corporation, in its capacity as issuer of the
Debentures.
"Debenture Redemption Date" means "Redemption Date" as defined in
the Subordinated Indenture.
"Debenture Trustee" means Wilmington Trust Company, as trustee
under the Subordinated Indenture.
"Debentures" means the $ aggregate principal
amount of the Debenture Issuer's % Junior Subordinated Debentures,
Series , Due , issued pursuant to the Subordinated Indenture.
"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" has the meaning specified in Section 8.07(c).
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section
9.02.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(iii) default by the Trust in the payment of any Redemption
Price when it becomes due and payable; or
(iv) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this
Trust Agreement (other than a covenant or warranty a default in
whose performance or breach is specifically dealt with in clause
(ii) or (iii), above) and continuation of such default or breach
for a period of 60 days after there has been given, by registered
or certified mail, to the Property Trustee by the Holders of at
least 10% in Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect to the
Trust.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit C, as amended from time to time.
"Expiration Date" means December 31, 2041.
"Guarantee" means the Guarantee Agreement executed and delivered
by the Depositor and Wilmington Trust Company, a Delaware 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.
"Holder" has the meaning specified in the definition of
"Securityholder."
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, any officer, director, shareholder, member, partner, employee,
representative or agent of any Trustee, or any employee or agent of the
Trust or its Affiliates.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Investment Company Event" means the occurrence of a change in
law or regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or
regulatory authority to the effect that the Trust is or will be considered
an "investment company" that is required to be registered under the
Investment Company Act, which change in law becomes effective on or after
the date of original issuance of the Preferred Securities.
"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, as the context requires, (i) Trust
Securities having a Liquidation Amount equal to the principal amount of
Debentures at any time to be repaid, whether at stated maturity or upon
maturity by earlier acceleration, redemption or otherwise and (ii)
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities with respect to which such Debentures are to be
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 Securityholders in connection with a termination and
liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"No Recognition Opinion" means an opinion of nationally
recognized independent tax counsel experienced in such matters, 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 the Debentures.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, the President, a Vice President, the Treasurer or an
Assistant Treasurer of the Depositor, and delivered to the appropriate
Trustee. Any Officer's Certificate delivered with respect to compliance
with a condition or covenant provided for in this Trust Agreement shall
include:
(a) a statement that the officer signing the Officer's
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the Officer's
Certificate;
(c) a statement that 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 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 or the Depositor, but not an
employee of the Trust, the Property 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, however, that, if such Preferred
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of which
other Preferred Securities have been delivered pursuant to this
Trust Agreement, including pursuant to Sections 5.03 or 5.04;
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 Trustees 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.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and initially shall be Wilmington Trust
Company.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee at Wilmington
Trust Company, or such other banking institution as the Depositor shall
select, for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Paying Agent,
pursuant to Section 5.09, shall make payments to the Securityholders in
accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust designated as a "__% Cumulative Trust Preferred
Capital Security" having a Liquidation Amount of $25 and having rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit D.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust
Agreement solely in its capacity as Property Trustee of the Trust formed
and continued hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided, however, that each Debenture Redemption Date and
Maturity (as defined in the Subordinated Indenture) of the Debentures shall
be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Redemption Date of
any Trust Security, the Liquidation Amount of such Trust Security, plus
accumulated and unpaid Distributions thereon to the Redemption Date.
"Registrar" shall mean the registrar for the Preferred Securities
appointed by the Trust and shall be initially Wilmington Trust Company.
"Responsible Officer," when used with respect to the Property
Trustee means an officer of the Property Trustee assigned by the Property
Trustee to administer its corporate trust matters.
"Securities Depository" shall be The Depository Trust Company, or
a successor thereto.
"Securities Register" shall mean the Securities Register
described in Section 5.03.
"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.
"Special Event" means either a Tax Event or an Investment Company
Event.
"Subordinated Indenture" means the Indenture, dated as of
, 1996, between the Depositor and the Debenture Trustee, as amended or
supplemented from time to time.
"Tax Event" means the receipt by the Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting
taxation, or as a result of any official administrative or judicial
pronouncement or decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement
or decision is announced on or after the date of original issuance of the
Preferred Securities under this Trust Agreement, there is more than an
insubstantial risk that at such time or within 90 days of the date thereof
(i) the Trust is, or will be, subject to United States federal income tax
with respect to income received or accrued 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.
"Transfer Agent" shall mean one or more transfer agents for the
Preferred Securities appointed by the Administrative Trustees on behalf of
the Trust and shall be initially Wilmington Trust Company.
"Trust" means the Delaware business trust created by the Original
Trust Agreement and continued hereby and identified on the cover page to
this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including all exhibits
hereto and the provisions of the Trust Indenture Act that are deemed to be
a part of and govern this Amended and Restated Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account and (iii) all proceeds and
rights in respect of the foregoing and any other property and assets for
the time being held by the Property Trustee pursuant to the trusts of this
Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Underwriting Agreement" means the Underwriting Agreement, dated
as of , 1996, among the Trust, the Depositor and the
underwriters named therein.
ARTICLE II.
ESTABLISHMENT OF THE TRUST; ISSUANCE OF
TRUST SECURITIES; RIGHTS OF SECURITYHOLDERS
SECTION 2.01. NAME. The Trust created hereby shall be known as
"Delmarva Power Financing 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 PROPERTY TRUSTEE; PRINCIPAL PLACE OF
BUSINESS. The office of the Property Trustee in the State of Delaware is
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890,
or at such other address in Delaware as the Property Trustee may designate
by written notice to the Securityholders and the Depositor. The principal
place of business of the Trust is c/o Delmarva Power & Light Company, 800
King Street, Wilmington, Delaware 19899.
SECTION 2.03. INITIAL CONTRIBUTION OF TRUST PROPERTY; INITIAL
OWNERSHIP; ORGANIZATIONAL EXPENSES. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with the Original Trust
Agreement of the sum of $10, which constituted the initial Trust Property.
Upon the creation of the Trust by such contribution 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. 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. The
Depositor and an Administrative Trustee, on behalf of the Trust, executed
and delivered the Underwriting Agreement. Contemporaneously with the
execution and delivery of this Trust Agreement, one of the Administrative
Trustees, on behalf of the Trust in accordance with Section 5.01, executed
manually and delivered a Preferred Securities Certificate, registered in
the name of the nominee of the Securities Depository, evidencing [
] Preferred Securities having an aggregate Liquidation Amount of
$ , against receipt of the purchase price of such Preferred
Securities of $ , which amount such Administrative Trustee shall
promptly deliver to the Property Trustee.
SECTION 2.05. SUBSCRIPTION AND PURCHASE OF DEBENTURES; ISSUANCE
OF THE COMMON SECURITIES. Contemporaneously with the execution and
delivery of this Trust Agreement, the Administrative Trustees, on behalf of
the Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Property Trustee and in an aggregate
principal amount of $ , and, in satisfaction of the purchase
price for such Debentures, (x) one of the Administrative Trustees, on
behalf of the Trust, shall execute and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor,
evidencing [ ] Common Securities having an aggregate
Liquidation Amount of $ , and (y) the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor the sum of $
, representing the proceeds from the sale of the Preferred Securities
pursuant to the Underwriting Agreement.
SECTION 2.06. DECLARATION OF TRUST; APPOINTMENT OF ADDITIONAL
ADMINISTRATIVE TRUSTEES. The exclusive purposes and functions of the Trust
are (i) to issue Trust Securities and invest the proceeds thereof in
Debentures, and (ii) to receive payments to be made with respect to the
Debentures and disburse such payments in accordance with the terms hereof,
and (iii) 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.
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 2.07 and Article VIII and in accordance with
the following provisions (i) and (ii), 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:
(i) As among the Trustees, the Administrative Trustees, acting singly
or jointly, shall have the power, duty and authority to act on behalf of
the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) without the consent of any Person, the causing of the
Trust to enter into and to execute, deliver and perform on behalf
of the Trust, the Expense Agreement, and such agreements or other
documents as may be necessary or desirable in connection with the
consummation of the Underwriting Agreement;
(C) the qualification of the Trust to do business in any
jurisdiction as may be necessary or desirable;
(D) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(E) 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;
(F) the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under
the Exchange Act, and the preparation and filing of all periodic
and other reports and other documents pursuant to the foregoing;
(G) the appointments of a Paying Agent [subject to Section
5.09], a Transfer Agent and a Registrar in accordance with this
Trust Agreement;
(H) the registration of transfers of the Trust Securities in
accordance with this Trust Agreement; and
(I) 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).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following ministerial matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the deposit of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities in accordance with the terms of
this Trust Agreement;
(E) 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;
(F) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(G) 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
(H) the taking of any ministerial action incidental to the
foregoing as the Property Trustee may from time to time determine
is necessary or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder).
Subject to this Section 2.07(a)(ii), the Property Trustee shall have none
of the duties, liabilities, powers or authority of the Administrative
Trustees set forth in Section 2.07(a)(i) or the Depositor set forth in
Section 2.07(c). The Property Trustee shall have the power and authority
to exercise all of the rights, powers and privileges of a holder of
Debentures under the Subordinated Indenture and, if an Event of Default
occurs and is continuing, the Property Trustee may, for the benefit of
Holders of the Trust Securities, in its discretion proceed to protect and
enforce its rights as holder of the Debentures subject to the rights of the
Holders pursuant to the terms of this Trust Agreement.
(b) 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, (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 issuance of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust
with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the
date of this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) to prepare for filing by the Trust with the Commission and
to execute a registration statement on Form S-3 in relation to
the Preferred Securities, including any amendments thereto;
(ii) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and
advise the Trustees of actions they must take on behalf of the
Trust, and prepare for execution and filing any documents to be
executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with
the applicable laws of any such states;
(iii) to prepare for filing by the Trust an application to the
New York Stock Exchange, any other national stock exchange or the
Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities and to file or cause the Administrative
Trustees to file thereafter with such exchange such notifications
and documents as may be necessary from time to time to maintain
such listing;
(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 Exchange Act, including any amendments thereto;
(v) to execute and deliver on behalf of the Trust the
Underwriting Agreement and such other agreements as may be
necessary or desirable in connection with the consummation
thereof;
(vi) to select the investment banker or bankers to act as
underwriters with respect to the offer and sale by the Trust of
Preferred Securities and negotiate the terms of an Underwriting
Agreement and pricing agreement providing for such offer; and
(vii) to take any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs
of the Trust and to operate the Trust so that the Trust will not be deemed
to be an "investment company" required to be registered under the
Investment Company Act of 1940, as amended, or classified other than as a
"grantor trust" for United States federal income tax purposes and so that
the Debentures will be treated as indebtedness of the Depositor for United
States federal income tax purposes. In this connection, subject to the
provisions of Section 10.03, the Depositor and the Administrative Trustees
are authorized to take any action, not inconsistent with applicable law or
this Trust Agreement, that each of the Depositor and the Administrative
Trustees determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not materially and adversely affect
the interests of the Holders of the Preferred Securities.
(e) Anything in this Trust Agreement to the contrary
notwithstanding, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees
set forth herein. The Delaware Trustee shall be one of the Trustees of the
Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 2.08. 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.
SECTION 2.10. 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 or similar rights and when
issued and delivered to Securityholders against payment of the purchase
price therefor will be fully paid and nonassessable interests in the Trust.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.01. PAYMENT ACCOUNT. (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The
Property Trustee and the Paying Agent appointed by the Administrative
Trustees shall have exclusive control 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.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held
in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.01. DISTRIBUTIONS. (a) Distributions on the Trust
Securities shall be cumulative, and will accumulate whether or not there
are funds of the Trust available for the payment of Distributions.
Distributions shall accrue from the Closing Date, and, except in the event
that the Depositor exercises its right to extend the interest payment
period for the Debentures pursuant to Section 311 of the Subordinated
Indenture, shall be payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year, commencing on December 31, 1996.
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 that is a Business Day 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, to the extent permitted by law, interest
payable on unpaid interest at the percentage rate per annum set forth
above, compounded quarterly) 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 immediately 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 such Distribution Date.
SECTION 4.02. REDEMPTION. (a) On each Debenture Redemption Date
and at Maturity for the Debentures, the Property Trustee will be required
to redeem a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee
by first-class mail, postage prepaid, mailed not less than 30 nor more than
60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(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;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon will cease to accrue on
and after said date;
(vi) the place or places where such Trust Securities are to be
surrendered for payment of the Redemption Price; and
(vii) such other matters as the Property Trustee shall deem
desirable or appropriate.
(c) The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be deemed payable
on each Redemption Date only if 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 and will give the Paying Agent irrevocable
instructions to pay the Redemption Price to the Holders thereof upon
surrender of their Trust Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of
such Trust Securities as they appear on the Securities Register for the
Trust Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption shall have been given and funds deposited
as required, then on the Redemption Date all rights of Securityholders
holding Trust Securities so called for redemption will cease, except the
right of such Securityholders to receive the Redemption Price, and such
Trust Securities will cease to be outstanding. In the event that any
Redemption Date is not a Business Day, then payment of the Redemption Price
payable on such date shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any
such delay). In the event that payment of the Redemption Price in respect
of any Trust Securities called for redemption is 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 to the date on which such
Redemption Price shall actually be paid.
(e) Subject to Section 4.03(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated 3% to the Common Securities and 97% to the Preferred Securities.
The particular Preferred Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Property Trustee from
the Outstanding Preferred Securities not previously called for redemption,
by such method as the Property Trustee shall deem fair and appropriate and
which may provide for the selection for 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 Transfer Agent and 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) If on
any Distribution Date or Redemption Date any Event of Default resulting
from 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, payment in full of such Redemption Price on all
Outstanding Preferred Securities, shall have been made or provided for.
(b) In the case of the occurrence of an Event of Default
resulting from a Debenture Event of Default, the Holder of Common
Securities will be deemed to have waived such Event of Default until the
effect of all such Events of Default with respect to the Preferred
Securities shall have been cured, waived or otherwise eliminated. Until
all Events of Default with respect to the Preferred Securities shall have
been so cured, waived or otherwise eliminated, the Property Trustee shall
act solely on behalf of the Holders of the Preferred Securities, and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act.
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 Securities
Register. Payments in respect of the Common Securities shall be made in
such manner as shall be mutually agreed between the Administrative Trustees
and the Holder of the Common Securities.
SECTION 4.05. TAX RETURNS AND REPORTS. The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's
expense and direction, and file all United States federal, state and local
tax and information returns and reports required to be filed by or in
respect of the Trust. In this regard, the Administrative Trustees shall
(a) prepare and file (or cause to be prepared and filed) the Internal
Revenue Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
related Internal Revenue Service Form 1099, or any successor form or the
information required to be provided on such form. The Administrative
Trustees shall provide the Depositor and the Property Trustee with a copy
of all such returns, reports and schedules promptly after such filing or
furnishing. The Trustees shall comply with United States federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the
Trust Securities.
SECTION 4.06. PAYMENTS UNDER SUBORDINATED INDENTURE. Any amount
payable hereunder to any Holder of Preferred Securities shall be reduced by
the amount of any corresponding payment such Holder has directly received
pursuant to Section 808 of the Subordinated Indenture. Notwithstanding the
provisions hereunder to the contrary, Securityholders acknowledge that any
Holder of Preferred Securities that receives payment under Section 808 of
the Subordinated Indenture may receive amounts greater than the amount such
Holder may be entitled to receive pursuant to the other provisions of this
Trust Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.01. THE TRUST SECURITIES CERTIFICATES. The Trust
Securities Certificates shall be issued in denominations of $25 Liquidation
Amount and integral multiples thereof. Subject to Section 2.04 relating to
the original issuance of the Preferred Securities Certificate registered in
the name of the nominee of the Securities Depository, the Trust Securities
Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Administrative Trustee and, if executed
on behalf of the Trust by facsimile signature, countersigned by a Transfer
Agent or its agent. Trust Securities Certificates bearing the signatures
of individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust and, if executed on
behalf of the Trust by facsimile signature and countersigned by a Transfer
Agent or its agent, shall be validly issued and entitled to the benefits of
this Trust Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the delivery of such Trust
Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. Trust Securities
Certificates may be typewritten, printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to the
Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees, or any one of them.
SECTION 5.02. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR. On
the Closing Date, the Depositor shall acquire, and thereafter retain,
beneficial and record ownership of the Common Securities. Any attempted
transfer of the Common Securities (other than a transfer in connection with
a merger or consolidation of the Depositor with or into another corporation
pursuant to Section 1101 of the Subordinated Indenture) 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." A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
typewritten or definitive Common Securities Certificate.
SECTION 5.03. REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED
SECURITIES CERTIFICATES. (a) The Registrar shall keep or cause to be kept,
at its principal corporate office, a Securities Register in which, subject
to such reasonable regulations as it may prescribe, the Registrar shall
provide for the registration of Preferred Securities Certificates and the
registration of transfers and exchanges of Preferred Securities
Certificates as herein provided.
(b) 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 on behalf of the Trust by manual or facsimile signature and, if
executed on behalf of the Trust by facsimile signature, cause a Transfer
Agent or its agent to countersign and 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.
(c) 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 a Transfer Agent duly executed by the Holder or
such Holder's attorney duly authorized in writing. 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.
(d) No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but a Transfer
Agent 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 5.04. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES. If (i) any mutilated Trust Securities Certificate
shall be surrendered to a Transfer Agent, or if a Transfer Agent shall
receive evidence to its satisfaction of the destruction, loss or theft of
any Trust Securities Certificate and (ii) there shall be delivered to the
Transfer Agent 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 such Trust Securities Certificate and, if execution on
behalf of the Trust is by facsimile signature, such Certificate shall be
countersigned by a Transfer Agent; 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 5.04, the Administrative Trustees or the
Transfer Agent 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
5.04 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 5.05. CANCELLATION BY REGISTRAR. All Trust Securities
Certificates surrendered for payment, redemption, registration of transfer
or exchange shall, if surrendered to any Person other than the Registrar,
be delivered to the Registrar and, if not theretofore cancelled, shall
promptly be cancelled by the Registrar. No Trust Securities Certificates
shall be issued in lieu of or in exchange for any Trust Securities
Certificates cancelled as provided in this Section, except as expressly
permitted by this Trust Agreement. All cancelled Trust Securities
Certificates held by the Registrar shall be disposed of in accordance with
customary practices.
SECTION 5.06. PERSONS DEEMED SECURITYHOLDERS. Prior to due
presentation of a Preferred Securities Certificate for registration of
transfer, the Trustees and the Registrar shall be entitled to treat the
Person in whose name any Preferred Securities Certificate shall be
registered in the Securities Register as the Holder of such Preferred
Securities Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and neither the Trustees nor the Registrar
shall be bound by any notice to the contrary.
SECTION 5.07. LISTS OF HOLDERS. Semiannually, not later than
June 1 and December 1 in each year, commencing December 1, 1996, and at
such other times as the Property Trustee may request in writing, the
Administrative Trustees shall furnish or cause to be furnished to the
Property Trustee information as to the names and addresses of the Holders,
and the Property 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 Property
Trustee shall be the Registrar.
SECTION 5.08. MAINTENANCE OF OFFICE OR AGENCY. The
Administrative Trustees shall or shall cause the Transfer Agent to
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 or the Transfer Agent in respect of the
Trust Securities Certificates may be served. The Administrative Trustees
shall or shall cause the Transfer Agent to give prompt written notice to
the Property Trustee and to the Securityholders of any change in 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. The Property Trustee shall be entitled to
rely upon a certificate of the Paying Agent stating in effect the amount of
such funds so to be withdrawn and that same are to be applied by the Paying
Agent in accordance with this Section 5.09. The Administrative Trustees or
any one of them may revoke such power and remove the Paying Agent if the
Administrative Trustees or any one of them determines in its sole
discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying
Agent may choose any co-paying agent that is acceptable to the
Administrative Trustees and the Depositor. The Paying Agent shall be
permitted to resign upon 30 days' written notice to the Administrative
Trustees and the Depositor. In the event of the removal or resignation of
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, trust company or an Affiliate
of the Depositor). The Administrative Trustees shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the
Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying
Agent shall return all unclaimed funds to the Property Trustee and upon
resignation or removal of a Paying Agent such Paying Agent also shall
return all other funds in its possession to the Property Trustee. The
provisions of Sections 8.01 through 8.06 shall apply to the Paying Agent
appointed hereunder, and the Paying Agent shall be bound by the
requirements with respect to paying agents of securities issued pursuant to
the Trust Indenture Act. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 5.10. BOOK-ENTRY SYSTEM. (a) The Administrative
Trustees, at the direction and expense of the Depositor, may from time to
time appoint a Securities Depository or a successor thereto and enter into
a letter of representations or other agreement with such Securities
Depository to establish procedures with respect to the Preferred
Securities. Any Securities Depository shall be a Clearing Agency.
(b) The Depositor and the Trustees covenant and agree to meet the
requirements of a Securities Depository for the Preferred Securities with
respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred
Securities.
(c) Whenever the beneficial ownership of any Preferred Securities
is determined through the books of a Securities Depository, the
requirements in this Trust Agreement of holding, delivering or
transferring, and making payments in respect of, such Preferred Securities
shall be deemed modified with respect to such Preferred Securities to meet
the requirements of the Securities Depository with respect to actions of
the Trustees, the Depositor and the Paying Agent. Any provisions hereof
permitting or requiring delivery of such Preferred Securities shall, while
such Preferred Securities are in a book-entry system, be satisfied by the
notation on the books of the Securities Depository in accordance with
applicable state law.
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.
If the Property Trustee fails to enforce its rights under the Debentures or
this Trust Agreement, a Holder of Preferred Securities may institute a
legal proceeding directly against the Depositor to enforce the Property
Trustee's rights under the Debentures or this Trust Agreement, to the
fullest extent permitted by law, without first instituting any legal
proceeding against the Property Trustee or any other person.
Notwithstanding the foregoing, a Holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to such Holder
directly of principal of or interest on the Debentures having a principal
amount equal to the aggregate Liquidation Amount of the Preferred
Securities of such Holder on or after the due dates specified in the
Debentures. In connection with any such proceeding, the Depositor will be
subrogated to the rights of any Holder of Preferred Securities to the
extent of any payment made by the Depositor to such Holder.
(b) So long as any Debentures are held by the Property Trustee,
the Trustees shall not (i) direct the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Debenture Trustee with
respect to such Debentures, (ii) waive any past default which is waivable
under Section 813 of the Subordinated Indenture, (iii) exercise any right
to rescind or annul a declaration that the principal of all the Debentures
shall be due and payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least 66 2/3% of the aggregate Liquidation
Amount of the Outstanding Preferred 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.
SECTION 6.02. NOTICE OF MEETINGS. Notice of all meetings of the
Holders of a 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. (a)
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 at least
25% of the aggregate Liquidation Amount of the Outstanding Preferred
Securities and may, at any time in their discretion, call a meeting of
Holders of Preferred Securities to vote on any matters as to which the
Holders of Preferred Securities are entitled to vote.
(b) Holders of at least 50% of the aggregate Liquidation Amount
of the Outstanding Preferred Securities, present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote by
the Holders of a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities shall constitute the action of the
Securityholders, unless this Trust Agreement shall require a greater
affirmative vote.
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 Trustees may direct, for
verification prior to the time at which such vote shall be taken. Only
Securityholders of record shall be entitled to vote. When Trust Securities
are held jointly by several Persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by
proxy, and such joint owners or their proxies so present disagree as to any
vote to be cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, 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 Holders of at least a majority of the aggregate
Liquidation Amount of the 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.
SECTION 6.07. RECORD DATE FOR VOTING. For the purposes of
determining the Securityholders who are entitled to notice of and to vote
at any meeting or by written consent, 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
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. (a) 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 6.08.
(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 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.
(c) The ownership of Preferred Securities shall be proved by the
Securities Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Trust Security shall bind
every future Holder of the same Trust Security and the Holder 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.
(e) 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.
(f) If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to the
authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect to
such matter.
SECTION 6.09. INSPECTION OF RECORDS. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to
the Administrative Trustees and the Property Trustee, the 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
SECTION 7.01. PROPERTY TRUSTEE. The Property Trustee hereby
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(i) 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 Delaware;
(ii) 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;
(iii) 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;
(iv) 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
(v) 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 or Delaware law governing the banking
or trust powers of the Property Trustee.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) The
Property 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 Trust
Agreement and in the terms of the Trust Securities and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. In
case an Event of Default has occurred (that has not been cured or waived),
the Property Trustee shall exercise such of the rights and powers vesting
in it by this Trust Agreement, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of an 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 Property Trustee
shall be determined solely by the express provisions of this
Trust Agreement and in the terms of the Trust Securities, and the
Property Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in
this Trust Agreement, and no implied covenants or obligations
shall be read into this Trust Agreement against the Property
Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Trust Agreement; provided, however, that in
the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the
Property Trustee, the Property Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Trustee Agreement.
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a majority of
the aggregate Liquidation Amount of the Outstanding Preferred
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the Property Trustee
under this Trust Agreement;
(iv) 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.
(v) 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, to the extent applicable, Rule 3a-7 under the Investment
Company Act of 1940, as amended;
(vi) 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;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Depositor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account established by the Property Trustee pursuant to this
Trust Agreement and except to the extent otherwise required by law;
and
(viii) 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.
(C) 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(c) 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.
(D) no Administrative Trustee shall be liable for any act
or omission to act hereunder, except for its own gross negligence
or wilful misconduct.
SECTION 8.02. CERTAIN NOTICES. (a) 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 Event of Default known to the Property Trustee to the
Securityholders, the Administrative Trustees and the Depositor, unless such
Event of Default shall have been cured or waived.
(b) Within Five Business Days after receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Subordinated Indenture, an Administrative
Trustee shall transmit, in the manner and to the extent provided in Section
10.08, notice of such exercise to the Securityholders and the Property
Trustee.
SECTION 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to
the provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of auditors
or any other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or
document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) if (A) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative
courses of action or (B) in construing any of the provisions in
this Trust Agreement the Property Trustee finds the same
ambiguous or inconsistent with any other provisions contained
herein or (C) the Property Trustee is unsure of the application
of any provision of this Trust Agreement, then, except as to any
matter as to which the Preferred 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 Officer's Certificate;
(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 complying with such
request or direction;
(vi) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document
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;
(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, however, 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 (A) a Responsible Officer of the
Property Trustee shall have actual knowledge of the default or
Event of Default or (B) written notice of such default or Event
of Default shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Securityholder;
(x) no provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or
obligation; and no permissive or discretionary power or authority
available to the Property Trustee shall be construed to be a
duty;
(xi) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
the Property Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Trust Agreement or adequate
indemnity against such risk or liability is not reasonably
assured to it;
(xii) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including
any financing or continuation statement or any securities) (or
any rerecording, refiling or reregistration thereof);
(xiii) the Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction; and
(xiv) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder the Property Trustee (A) may request
instructions from the Securityholders, which instructions may
only be given by the Holders of the same amount of the Trust
Securities as would be entitled to direct the Property Trustee
under the terms of this Trust Agreement in respect of such
remedies, rights or actions, (B) may refrain from enforcing such
remedy or right or taking such other action until such
instructions are received, and (C) shall be protected in acting
in accordance with such instructions.
SECTION 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Depositor, and the
Trustees do not assume any responsibility for their correctness. The
Trustees make no representations as to the value or condition of the
property of the Trust or any part thereof or as to the title of the Trust
thereto or as to the security afforded thereby or hereby, or as to the
validity or genuineness of any securities at any time pledged and deposited
with any Trustees hereunder, nor as to the validity or sufficiency of this
Trust Agreement or the Trust Securities. The Trustees shall not be
accountable for the use or application by the Trust of the proceeds of the
sale 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 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 agent.
SECTION 8.06. COMPENSATION; FEES; INDEMNITY. (a) The Depositor
agrees:
(i) to pay to the Trustees from time to time compensation for
all services rendered by the Trustees hereunder in accordance with a
separate fee agreement between the Depositor and the Trustees, if any
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustees in accordance
with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence (gross negligence, in the case of any
Administrative Trustee), bad faith or willful misconduct; and
(iii) to indemnify each Indemnified Person for, and to hold each
Indemnified Person harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross negligence, in
the case of any Administrative Trustee), bad faith or willful
misconduct on its part, arising out of or in connection with the
acceptance or administration of this Trust Agreement, including the
reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
(b) 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.
(c) The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement.
SECTION 8.07. CERTAIN TRUSTEES REQUIRED; ELIGIBILITY. (a) There
shall at all times be a Property Trustee hereunder with respect to the
Trust Securities. The Property Trustee shall be a Person that has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the
purposes of this Section 8.07(a), 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 8.07(a), 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. So long as the Property Trustee has its principal place
of business in the State of Delaware and otherwise meets the requirements
of applicable law, the Property Trustee shall also be the Delaware Trustee.
In the event that the Property Trustee should no longer qualify as the
Delaware Trustee, either one of the Administrative Trustees who is a
resident of the State of Delaware shall be the Delaware Trustee or the
Administrative Trustees shall appoint a qualified Person to be Delaware
Trustee.
SECTION 8.08. CONFLICTING INTERESTS. If the Property Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Trust Agreement. The
Subordinated Indenture and the Guarantee Agreement shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture
Act.
SECTION 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE. (a) Unless an
Event of Default shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Property Trustee
shall have power to appoint, and upon the written request of the Property
Trustee, the Depositor shall for such purpose join with the Property
Trustee in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by
the Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to act as separate
trustee of any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this
Section 8.09. 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 a Debenture
Event of Default has occurred and is continuing, the Property Trustee alone
shall have power to make such appointment.
(b) 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.
(c) 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:
(i) 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.
(ii) 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.
(iii) 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 a Debenture Event of Default 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 8.09.
(iv) 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.
(v) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) 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.
(a) No resignation or removal of any 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
requirements of Section 8.11.
(b) The Property Trustee may resign at any time by giving
written notice thereof to the Deppositor and the Securityholders. Any
Administrative Trustee may resign at any time by giving written notice
thereof to the Depositor. If the instrument of acceptance by a successor
Trustee required by Section 8.11 shall not have been delivered to the
resigning 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.
(c) Unless a Debenture Event of Default shall have occurred and
be continuing, the Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Trustee may be removed at such time by Act of the
Securityholders of a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities, delivered to such Trustee (in its
individual capacity and on behalf of the Trust).
(d) If a Trustee shall resign, be removed or become incapable of
continuing to act as Trustee at a time when no Debenture Event of Default
shall have occurred and be continuing, the Common Securityholder, by Act of
the Common Securityholder delivered to the retiring Trustee, shall promptly
appoint a successor Trustee, and the Trustee so succeeded shall comply with
the requirements of Section 8.11. If any Trustee shall resign, be removed
or become incapable of continuing to act as Trustee at a time when a
Debenture Event of Default shall have occurred and be continuing, the
Preferred Securityholders, by Act of the Holders of at least a majority of
the aggregate Liquidation Amount of the Outstanding Preferred Securities
delivered to such Trustee, shall promptly appoint a successor Trustee, and
the Trustee so succeeded shall comply with the requirements of Section
8.11. If no successor Trustee 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 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 Trustee.
(e) A retiring Property Trustee shall give notice thereof and of
the appointment of its successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the Depositor.
Each notice shall include the name and address of the successor Trustee and
the address of its Corporate Trust Office.
(f) Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act of
remaining Administrative Trustees if there are at least two of them or (ii)
otherwise by the Depositor (with the successor in each case being an
individual who satisfies the eligibility requirements for Administrative
Trustees 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 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. (a) In
case of the appointment hereunder of a successor Trustee, the retiring
Trustee and the successor Trustee shall execute and deliver an amendment
hereto wherein the successor Trustee shall accept such appointment and
which shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, the successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to
the Trust Securities and the Trust.
(b) Upon request of any such successor Trustee, the retiring
Trustee shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers
and trusts referred to in the preceding paragraph.
No successor Trustee shall accept its appointment unless at the
time of such acceptance the successor 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 any Trustee that
is not a natural person may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of such
Trustee, shall be the successor of such Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this Article VIII,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST. If and when the Property Trustee shall be or become a
creditor of the Depositor or the Trust (or any other obligor upon the
Debentures or the Trust Securities), the Property Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of
claims against the Depositor or Trust (or any such other obligor).
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE. (a) The Property
Trustee shall transmit to Securityholders such reports concerning the
Property Trustee and its actions under this Trust Agreement as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. Such of those reports as are required to be
transmitted by the Property Trustee pursuant to Section 313(a) of the Trust
Indenture Act shall be so transmitted within 60 days after December 31 of
each year, commencing December 31, 1996.
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Property Trustee with each
stock exchange upon which the Preferred Securities are listed, with the
Commission and with the Depositor. The Depositor will notify the Property
Trustee when any Preferred Securities shall have been listed on any stock
exchange.
SECTION 8.15. REPORTS TO THE PROPERTY TRUSTEE. The Depositor
and the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports, compliance certificates and
information as may be required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required thereby.
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 Officer's Certificate.
SECTION 8.17. NUMBER OF TRUSTEES. (a) The number of Trustees
shall be four, provided that the Depositor, by written instrument, may
increase or decrease the number of Administrative Trustees so long as there
is at least one.
(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), 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; provided, however, that
an Indemnified Person shall be liable for any loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or
willfull misconduct, (subject, with respect to the Property Trustee, to
Section 8.01). The provisions of this Trust Agreement, to the extent that
they restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein and subject to
the provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or arises between
an Indemnified Person and the Trust or any Covered Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein 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 Securityholder,
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
terms so made, taken or provided by the Indemnified Person shall not
constitute a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person
at law or in equity or otherwise; and
(c) Unless otherwise expressly provided herein and subject to
the provisions of the Trust Indenture Act, whenever in this Trust Agreement
an Indemnified Person is permitted or required to make a decision
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such
interests and factors as it reasonably desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust
or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and, to
the extent permitted by applicable law, shall not be subject to
any other or different standard imposed by this Trust Agreement.
ARTICLE IX.
TERMINATION AND LIQUIDATION
SECTION 9.01. TERMINATION UPON EXPIRATION DATE. The Trust shall
automatically terminate on the Expiration Date and the Trust Property shall
be distributed in accordance with Section 9.04.
SECTION 9.02. EARLY TERMINATION. Upon the first to occur of
(such first occurrence, an "Early Termination Event"):
(i) a Bankruptcy Event in respect of, or the dissolution or
liquidation of, the Depositor;
(ii) the redemption of all of the Preferred Securities;
(iii) the occurrence of a Special Event and the election by the
Depositor to terminate that Trust pursuant to Section 9.04(d);
(iv) the entrance by a court of competent jurisdiction of an
order for judicial termination of the Trust;
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 all amounts due to creditors of 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) On the Expiration Date or
earlier if an Early Termination Event specified in clause (i), (iii) or
(iv) of Section 9.02 shall occur, subject to Section 9.04(e), after
satisfaction of all amounts due to creditors of the Trust, if any, as
provided by applicable law, the Trust shall be liquidated by the Property
Trustee by distributing to each Securityholder a Like Amount of Debentures.
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 Securityholder at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date, which, in the case of an Early
Termination Event specified in clause (iii) of Section 9.02 shall
be no later than the 90th day following the occurrence of the
Special Event;
(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 in the case of a Section 9.04(e) liquidation,
receive a Liquidation Distribution, as the Administrative
Trustees or the Property Trustee shall deem appropriate.
(b) In order to effect the distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the outstanding Trust Securities Certificates.
(c) 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 Trust Securities Certificates to the
Property Trustee or its agent for exchange, (iii) the Depositor shall use
its reasonable efforts to have the Debentures listed on the New York Stock
Exchange or on such other stock exchange or other organization as the
Preferred Securities are then listed or traded, (iv) any Trust Securities
Certificate not so surrendered for exchange will be deemed to represent a
Like Amount of Debentures, accruing interest at the rate provided for in
the Debentures from the last Distribution Date on which a Distribution was
made on such Trust Securities Certificate until such Trust Securities
Certificate shall be so surrendered (and until such Trust Securities
Certificates shall be so surrendered, no payments of interest or principal
will be made to Holders of such Trust Securities Certificates) and (v) all
rights of Securityholders will cease, except the right to receive
Debentures and payments of interest and principal received by the Trustee
with respect to the Debentures represented by Trust Security Certificates
not surrendered for exchange upon surrender of Trust Securities
Certificates.
(d) If at any time a Special Event shall occur and be
continuing, the Depositor may elect to (i) redeem the Debentures in whole
but not in part and therefore cause a mandatory redemption of all the
Preferred Securities at the Redemption Price within 90 days following the
occurrence of such Special Event, or (ii) cause the termination of the
Trust; provided, however, that, in the case of a Tax Event, any such
termination shall be conditioned upon receipt by the Administrative
Trustees of a No Recognition Opinion.
(e) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for termination entered by a
court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property
Trustee not to be practical, the Trust Property shall be liquidated, and
the Trust shall be dissolved, wound-up or terminated by the Property
Trustee in such manner as the Property Trustee determines. In such event,
on the date of the dissolution, winding-up or other termination of the
Trust, Securityholders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after satisfaction of
all amounts due to creditors of the Trust, if any, as provided by
applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If, upon any
such dissolution, winding up or termination, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then,
subject to the next succeeding sentence, the amounts payable by the Trust
on the Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of Common Securities 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 a Debenture Event of Default has occurred and
is continuing or if a Debenture Event of Default has not occurred solely by
reason of a requirement that time lapse or notice be given, the Liquidation
Distribution with respect to the Preferred Securities shall be paid in full
prior to the making of any Liquidation Distribution with respect to the
Common Securities.
SECTION 9.05. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST. The Trust may not merge with or into,
consolidate, amalgamate, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to any corporation
or other Person, except pursuant to this Section 9.05. At the request of
the Depositor, with the consent of the Administrative Trustees and without
the consent of the Property Trustee or the Holders of the Preferred
Securities, the Trust may merge with or into, consolidate, amalgamate, be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of
any state; provided, however, that (i) such successor entity either (a)
expressly assumes all of the obligations of the Trust with respect to the
Preferred Securities or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities
(the "Successor Securities") so long as the Successor Securities rank the
same as the Preferred Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii)
the Depositor expressly appoints a trustee of such successor entity
possessing substantially the same powers and duties as the Property Trustee
as the holder of the Debentures, (iii) the Successor Securities are listed
or traded, or any Successor Securities will be listed or traded upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, if any,
(iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of Preferred
Securities (including any Successor Securities) in any material respect,
(vi) such successor entity has a purpose substantially identical to that of
the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor any
successor entity will be required to register as an investment company
under the Investment Company Act and (viii) the Depositor owns all of the
Common Securities of such successor entity and guarantees the obligations
of such successor entity under the Successor Securities at least to the
extent provided by the Guarantee. Notwithstanding the foregoing, the Trust
shall not, except with the consent of Holders of 100% of the aggregate
Liquidation Amount of the Outstanding Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to any other
Person or permit any other Person to consolidate, amalgamate, merge with or
into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or the successor entity to be classified
as other than a grantor trust for United States Federal income tax
purposes.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.01. GUARANTEE BY THE DEPOSITOR AND ASSUMPTION OF
OBLIGATIONS. Subject to the terms and conditions hereof, the Depositor
irrevocably and unconditionally guarantees to each Person to whom the Trust
is now or hereafter becomes indebted or liable (the "Beneficiaries"), and
agrees to assume liability for, the full payment, when and as due, of any
and all Obligations (as hereinafter defined) to such Beneficiaries. As
used herein, "Obligations" means any indebtedness, expenses or liabilities
of the Trust, other than obligations of the Trust to pay to Holders the
amounts due such Holders pursuant to the terms of the Trust Securities.
This guarantee and assumption is intended to be for the benefit, of, and to
be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
SECTION 10.02. LIMITATION OF RIGHTS OF SECURITYHOLDERS. The
death or incapacity of any person having an interest, beneficial or
otherwise, in a Trust Security shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or
any Securityholder for such person, to claim an accounting, take any action
or bring any proceeding in any court for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
SECTION 10.03. AMENDMENT. (a) This Trust Agreement may be
amended from time to time by the Property Trustee, a majority of the
Administrative Trustees and the Depositor, without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement any
provision herein or therein which may be inconsistent with any other
provision herein or therein, or to make any other provisions with respect
to matters or questions arising under this Trust Agreement, which shall not
be inconsistent with the other provisions of this Trust Agreement;
provided, however, that such action shall not adversely affect in any
material respect the interests of any Securityholder, (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"
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, or (iii) to effect the
acceptance of a successor Trustee's appointment. Any amendment of this
Trust Agreement pursuant to clause (i) above shall become effective only
when notice thereof shall have been given to the Securityholders.
(b) Except as provided in Sections 6.01(c) and 10.03(c), any
provision of this Trust Agreement may be amended by the Property Trustee, a
majority of Administrative Trustees and the Depositor with (i) the approval
of the Holders of at least a majority of the aggregate Liquidation Amount
of the Outstanding Trust Securities and (ii) receipt by the Trustees of an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to the Trustees in accordance with such amendment will not
affect the Trust's status as a grantor trust for United States federal
income tax purposes or the Trust's exemption from status of an "investment
company" under the Investment Company Act of 1940, as amended; provided,
however, that, subject to Section 10.03(c), if any proposed amendment to
the Trust Agreement provides for, or the Trustees otherwise propose to
effect, (A) 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 (B) the dissolution,
winding-up or termination of the Trust, other than pursuant to the terms of
this Trust Agreement, then such amendment or proposal shall not be
effective except with the approval of the Holders of at least 66 2/3% of
the aggregate Liquidation Amount of the Outstanding Preferred Securities.
(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, (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such payment on
or after such date or (iii) change the provisions of Section 10.03(c).
(d) Notwithstanding any other provisions of this Trust
Agreement, no Administrative 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 affected party, this Trust Agreement
may not be amended in a manner which imposes any additional obligation on
the Depositor or any Trustee.
(f) In the event there shall be that any amendment to this Trust
Agreement, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) The Trustees are entitled to receive an Opinion of Counsel
as conclusive evidence that any amendment to this Trust Agreement executed
pursuant to this Section 10.03 is authorized or permitted by, and conforms
to, the terms of this Section 10.03, has been duly authorized by and
lawfully executed and delivered on behalf of the other requisite parties,
and that it is proper for the Trustees under the provisions of this Section
10.03 to join in the execution thereof.
SECTION 10.04. SEPARABILITY. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.05. GOVERNING LAW. This Trust Agreement and the
rights and obligations of each of the Securityholders, the Trust and the
Trustees with respect to this Trust Agreement and the Trust Securities
shall be construed in accordance with and governed by the laws of the State
of Delaware (without regard to conflict of laws principles).
SECTION 10.06. SUCCESSORS. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to the Trust
or the Trustees, 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. (a) 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 Delmarva Power & Light
Company, 800 King Street, Wilmington, Delaware 19899, Attention: Treasurer,
facsimile no. (302) 429-3356, with a copy to the Secretary, facsimile no.
(302) 429-3367. 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.
(b) 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 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, 1100 North Market Street, Wilmington, Delaware 19890 marked
"Attention: Corporate Trust Administration" and (ii) with respect to the
Trust or the Administrative Trustees, at the address above for notice to
the Depositor, marked "Attention: Administrative Trustees for Delmarva
Power Financing 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) If any
provision hereof limits, qualifies or conflicts with another provision
hereof which is required or deemed to be included in this Trust Agreement
by, or is otherwise governed by, any of the provisions of the Trust
Indenture Act, such other provisions shall control; and if any provision
hereof otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing interests in the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER 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 SUBORDINATION PROVISIONS AND OTHER TERMS OF
THE GUARANTEE AND THE INDENTURE AND SHALL CONSTITUTE 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 Trust Agreement to be duly
executed, all as of the day and year first above written.
DELMARVA POWER & LIGHT COMPANY
By:
-------------------------------------
Title:
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
-------------------------------------
Title:
------------------------------------,
solely in his (her) capacity as
Administrative Trustee
------------------------------------
------------------------------------,
solely in his (her) capacity as
Administrative Trustee
------------------------------------
------------------------------------,
solely in his (her) capacity as
Administrative Trustee
------------------------------------
EXHIBIT A
CERTIFICATE OF TRUST
OF
DELMARVA POWER FINANCING I
THIS CERTIFICATE OF TRUST of Delmarva Power Financing I (the
"Trust"), dated as of , 1996, is being duly executed and
filed by the undersigned, as trustees, to create a business trust under the
Delaware Business Trust Act (12 Del. C. Sec. 3801, et seq.).
------- ------
1. Name. The name of the business trust being created hereby is
Delmarva Power Financing 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 as follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
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.
WILMINGTON TRUST COMPANY, ,
not in its individual capacity not in his (her) individual capacity
but solely as Trustee but solely as Trustee
By:
---------------------------- ---------------------------
Name:
Title:
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-[ ]
Certificate Evidencing Common Securities
of
DELMARVA POWER FINANCING I
Common Securities
(Liquidation Amount $25 per Common Security)
Delmarva Power Financing I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies
that Delmarva Power & Light Company (the "Holder") is the registered owner
of the number set forth above of common securities of the Trust
representing undivided beneficial interests in the assets of the Trust and
designated as Common Securities (Liquidation Amount $25 per Common
Security) (the "Common Securities"). In accordance with Section 5.02 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 _______ ___,
1996, as the same may be amended from time to time (the "Trust Agreement").
The Trust will furnish a copy of the Trust Agreement 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, an Administrative Trustee of the Trust has
executed this certificate for and on behalf of the Trust on this ____ day
of _________, 199__.
DELMARVA POWER FINANCING I
By:
--------------------------------------
not in his (her) individual
capacity, but solely as Administrative
Trustee
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1996, between Delmarva Power
& Light Company, a Delaware and Virginia corporation ("Delmarva Power"),
and Delmarva Power Financing I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debentures from Delmarva Power and to
issue its ___% Cumulative Trust Preferred Capital Securities (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 ________ __, 1996 as the same may be
amended from time to time (the "Trust Agreement");
WHEREAS, Delmarva Power is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance by each holder
of the Preferred Securities, which acceptance Delmarva Power hereby agrees
shall benefit Delmarva Power and which acceptance Delmarva Power
acknowledges will be made in reliance upon the execution and delivery of
this Agreement, Delmarva Power, including in its capacity as holder of the
Common Securities, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by Delmarva Power. Subject to the
----------------------------
terms and conditions hereof, Delmarva Power 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 (a) 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 (b)
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 Beneficiary must restore payment of any sum paid on account of
any Obligation under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Delmarva Power hereby waives
----------------
(a) notice of acceptance of this Agreement and of any Obligation to which
it may apply and (b) 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 Delmarva Power under this Agreement shall in no
way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
Neither the Trust nor any Beneficiary shall have any obligation to give
notice to, or obtain the consent of, Delmarva Power with respect to the
happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
-----------
Agreement directly against Delmarva Power and Delmarva Power waives any
right or remedy to require that any action be brought against the Trust or
any other person or entity before proceeding against Delmarva Power.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations,
--------------
covenants, agreements and duties contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of Delmarva
Power.
Section 2.02. Amendment. So long as there shall remain any
---------
Beneficiary or any Preferred Securities 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:
Delmarva Power Financing I
c/o Delmarva Power & Light Company, Treasury Department
800 King Street
Wilmington, Delaware 19899
Facsimile No.: (302) 429-3367
Attention: Administrative Trustees
Delmarva Power & Light Company
800 King Street
Wilmington, Delaware 19899
Facsimile No.: (302) 429-3367
Attention: Treasurer
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.
DELMARVA POWER & LIGHT COMPANY
By:
----------------------------------------
Name:
Title:
DELMARVA POWER FINANCING I
By:
----------------------------------------
not in his (her) individual capacity,
but solely as Administrative Trustee
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
DELMARVA POWER FINANCING I
% Cumulative Trust Preferred Capital Securities
(Liquidation Amount $25 per Preferred Security)
Delmarva Power Financing I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies
that ____________ (the "Holder") is the registered owner of the number set
forth above of preferred securities of the Trust representing undivided
beneficial interests in the assets of the Trust and designated as __%
Cumulative Trust Preferred Capital Securities (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 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 , 1996, as the same may be amended from time to
time (the "Trust Agreement"). The holder of this certificate is entitled
to the benefits of the Guarantee Agreement of Delmarva Power & Light
Company, a Delaware and Virginia corporation, and Wilmington Trust Company,
as guarantee trustee, dated as of , 1996 (the
"Guarantee"), to the extent provided therein. The Trust will furnish a
copy of the Trust Agreement and the Guarantee to the holder of this
certificate without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate
is bound by the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate for and on behalf of the Trust.
Dated:
DELMARVA POWER FINANCING I
By:
---------------------------------------
[ ]
not in his (her) individual
capacity, but solely as
Administrative Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred Securities
Certificate and irrevocably appoints
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attorney to transfer such Preferred Securities Certificate on the books of
the Trust. The attorney may substitute another to act for him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)