EXHIBIT 4.5
TRUST AGREEMENT
OF
DEFS CAPITAL TRUST I
THIS TRUST AGREEMENT is made as of April 30, 2002 (this "Declaration"),
by and among Duke Energy Field Services, LLC, a Delaware limited liability
company, as depositor (the "Depositor"), and Chase Manhattan Bank USA, National
Association, as trustee (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "DEFS Capital
Trust I" (the "Trust"), in which name the Trustee or the Depositor, to
the extent provided herein, may conduct the business of the Trust, make
and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trust the sum of $10. Such amount shall constitute the
initial trust estate. It is the intention of the parties hereto that
the Trust created hereby constitute a business trust under Chapter 38
of Title 12 of the Delaware Code, 12 Del. C. Section 3801, et seq. (the
"Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustee is hereby authorized and directed
to execute and file a certificate of trust with the Delaware Secretary
of State in such form as the Trustee may approve.
3. The Depositor and the Trustee will enter into an amended
and restated Trust Agreement or Declaration satisfactory to each such
party to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of
such amended and restated Trust Agreement or Declaration, the Trustee
shall not have any duty or obligation hereunder or with respect of the
trust estate, except as otherwise required by applicable law or as may
be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustee may take all
actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Depositor is hereby authorized, in its sole discretion,
(i) to file with the Securities and Exchange Commission (the
"Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (as herein defined), on
behalf of the Trust, (a) a Registration Statement on Form S-3 or other
appropriate form (the "1933 Act Registration Statement") (including
all pre-effective or post-effective amendments thereto) relating to the
registration under the Securities Act of 1933, as amended (the "1933
Act"), of the Preferred Securities of the Trust, (b) any preliminary
prospectus or prospectus or supplement thereto relating to the
Preferred Securities required to be filed under the 1933 Act, and (c)
if required, a Registration Statement on Form 8-A or other appropriate
form (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with the New
York Stock Exchange or any other exchange (collectively, the
"Exchange") and execute on behalf of the Trust a listing application
and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to
cause the Preferred Securities to be listed on the Exchange; (iii) to
file and execute on behalf of the Trust such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary
or desirable to register the Preferred Securities under the securities
or "Blue Sky" laws of such jurisdictions as the Depositor, on behalf of
the Trust, may deem necessary or desirable; (iv) to execute, deliver
and perform on behalf of the Trust, an underwriting agreement with the
Depositor and the underwriter or underwriters of the Preferred
Securities of the Trust; (v) to execute, deliver and perform a
depository agreement with the initial clearing agency, relating to the
Preferred Securities; and (vi) to apply for and obtain a tax
identification number for the Trust.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission, PORTAL or
state securities or Blue Sky laws to be executed on behalf of the Trust
by the Trustee, the Trustee, in its capacity as trustee of the Trust,
is hereby authorized and directed to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing, it being
understood that Chase Manhattan Bank USA, National Association, in its
capacity as trustee of the Trust, shall not be required to join in any
such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, PORTAL or
state securities or Blue Sky laws. In connection with all of the
foregoing, the Depositor hereby constitutes and appoints Rose M.
Robeson and Thomas E. Long, or either of them, as its true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution for the Depositor or in the Depositor's name, place and
stead, in any and all capacities, to sign any and all amendments
(including all pre-effective and post-effective amendments) to the 1933
Act Registration Statement and any 1934 Act Registration Statement and
to file the same, with all exhibits thereto, and any other documents in
connection therewith, with the Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the
Depositor might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or his respective substitute
or substitutes, shall do or cause to be done by virtue hereof.
5. This Declaration may be executed in one or more
counterparts.
6. The number of trustees of the Trust initially shall be one
and thereafter the number of trustees of the Trust shall be such number
as shall be fixed from time to time by a written instrument signed by
the Depositor which may increase or decrease the number of trustees of
the Trust; provided, however, that to the extent required by the
Business Trust Act, one trustee of the Trust shall either be a natural
person who is a resident of the State of Delaware or, if not a natural
person, any entity which has its principal place of business in the
State of Delaware. Subject to the foregoing, the Depositor is entitled
to appoint or remove without cause any trustee of the Trust at any
time. Any trustee of the Trust may resign upon thirty days' prior
notice to the Depositor.
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7. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware (with regard to
conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
DUKE ENERGY FIELD SERVICES, LLC,
as Depositor
By: /s/ ROSE M. ROBESON
-------------------------------------
Name: Rose M. Robeson
Title: Vice President and Chief
Financial Officer
CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION, not in its
individual capacity but solely as
trustee of the Trust
By: /s/ JOHN J. CASHIN
-------------------------------------
Name: John J. Cashin
Title: Vice President
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