EXHIBIT 4.5
TRUST AGREEMENT
THIS TRUST AGREEMENT is made as of February 1, 1998, by and among AEP
Resources, Inc., an Ohio corporation, as Depositor (the "Depositor"), Stephan T.
Haynes, as "Administrative Trustee", The Bank of New York, a New York banking
corporation, as "Property Trustee" and The Bank of New York (Delaware), duly
organized and existing in the State of Delaware, as "Delaware Trustee" (the
Property Trustee, the Delaware Trustee and the Administrative Trustee together,
the "Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Yorkshire Capital Trust I",
in which name the Trustees, the Depositor or the holder of the Control
Certificate (as herein defined), 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.
ss. 3801, et seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware Secretary
of State substantially in the form attached hereto or in such other form as the
Trustees may approve.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement (the "Amended and Restated Trust Agreement") satisfactory to
each such party and substantially in the form included as an exhibit to the
Registration Statement (the "1933 Act Registration Statement") filed under the
Securities Act of 1933, as amended (the "1933 Act"), or in such other form as
the Depositor and the holder of the Control Certificate (as herein defined) may
approve, to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities, as referred to therein. Prior to
the execution and delivery of such Amended and Restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect to 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. However, notwithstanding
the foregoing, the Trustees may take all actions deemed proper as are necessary
to effect the transactions contemplated herein.
4. The Depositor and the Trustees agree that, subsequent to the execution
of this Trust Agreement and prior to the execution of the Amended and Restated
Trust Agreement, the Depositor shall transfer an instrument (the "Control
Certificate") which will establish in the holder of such Control Certificate, in
addition to its rights, powers and duties hereunder, certain voting,
administrative and appointment powers with respect to the Trust. Such voting,
administrative and appointment powers shall be specified in the Amended and
Restated Trust Agreement.
5. The Depositor, as the sponsor of the Trust, and the holder of the
Control Certificate, as the case may be, acting singly or jointly, is hereby
authorized, to cause the following actions to be taken (i) to file with the
Securities and Exchange Commission (the "Commission"), on behalf of
the Trust, (a) the 1933 Act Registration Statement including pre-effective or
post-effective amendments to such Registration Statement, relating to the
registration under 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 pursuant to Rule 424 under the 1933
Act, and (c) 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 Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to file with the New York Stock Exchange or any other
exchange and execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on the New York Stock Exchange or any other 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; and (iv) to
execute, deliver and perform on behalf of the Trust an underwriting agreement
with respect to the Preferred Securities of the Trust. The Trustees further
hereby ratify and approve all actions having previously been taken with respect
to the foregoing. In the event that any filing referred to in clauses (i)-(iii)
above is required by the rules and regulations of the Commission, the New York
Stock Exchange or any other exchange or state securities or Blue Sky laws to be
executed on behalf of the Trust by the Trustee, the Property Trustee and the
Delaware Trustee, in their capacities as trustees of the Trust, are hereby
authorized and directed to join in any such filing and to execute on behalf of
the Trust any and all of the foregoing, it being understood that the Property
Trustee and the Delaware Trustee in their capacities as trustees 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, the New York Stock Exchange or any other exchange or state
securities or Blue Sky laws.
6. This Trust Agreement may be executed in one or more counterparts.
7. The number of Trustees initially shall be three (3) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor or the holder of the Control
Certificate which may increase or decrease the number of Trustees; provided,
however, that to the extent required by the Business Trust Act, one Trustee
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware.
8. From and after issuance of the Control Certificate, this Trust
Agreement may be amended, modified or restated only with the consent of the
holder of the Control Certificate.
9. This Trust Agreement shall be construed in accordance with and governed
by the internal laws of the State of Delaware.
2
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
AEP RESOURCES, INC.,
as Depositor
By: /s/ Jeffrey D. Cross
Name: Jeffrey D. Cross
Title:
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Ming J. Shiang
Name: Ming J. Shiang
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Walter N. Gitlin
Name: Walter N. Gitlin
Title: Authorized Signatory
STEPHAN T. HAYNES,
as Administrative Trustee
/s/ Stephan T. Haynes
3