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EXHIBIT 4.16
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AMENDED AND RESTATED
TRUST AGREEMENT
OF
TECO CAPITAL TRUST __
AMONG
TECO FUNDING COMPANY __, LLC, AS DEPOSITOR,
THE BANK OF NEW YORK,
AS PROPERTY TRUSTEE
AND
THE BANK OF NEW YORK (DELAWARE),
AS DELAWARE TRUSTEE
DATED AS OF ___________, 20__
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINED TERMS................................................... 1
Section 1.1. Definitions............................................... 1
ARTICLE 2 ESTABLISHMENT OF THE TRUST...................................... 8
Section 2.1. Name...................................................... 8
Section 2.2. Office of the Delaware Trustee; Principal Place
of Business............................................... 8
Section 2.3. Continuation of Trust..................................... 9
Section 2.4. Issuance of the Trust Preferred Securities................ 9
Section 2.5. Declaration of Trust and Business of the Trust............ 10
Section 2.6. Appointment of Trustees................................... 10
Section 2.7. Title to Trust Property................................... 10
ARTICLE 3 PAYMENT ACCOUNT................................................. 10
Section 3.1. Payment Account........................................... 10
ARTICLE 4 CERTAIN TERMS OF THE TRUST PREFERRED SECURITIES................. 11
Section 4.1. Distributions............................................. 11
Section 4.2. Redemption................................................ 12
Section 4.3. Payment Procedures........................................ 13
Section 4.4. Tax Returns and Reports................................... 13
ARTICLE 5 TRUST PREFERRED SECURITIES CERTIFICATES......................... 14
Section 5.1. Initial Ownership......................................... 14
Section 5.2. The Trust Preferred Securities Certificates............... 14
Section 5.3. Execution and Delivery of Trust Preferred
Securities Certificates................................... 14
Section 5.4. Registration of Transfer and Exchange of Trust
Preferred Securities Certificates......................... 14
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Preferred
Securities Certificates................................... 15
Section 5.6. Persons Deemed Securityholders............................ 16
Section 5.7. Access to List of Securityholders' Names and
Addresses................................................. 16
Section 5.8. Maintenance of Office or Agency........................... 16
Section 5.9. Appointment of Paying Agent............................... 16
Section 5.10. Book-Entry Trust Preferred Securities Certificates........ 17
Section 5.11. Notices to Clearing Agency................................ 18
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TABLE OF CONTENTS
(CONTINUED)
Section 5.12. Definitive Trust Preferred Securities Certificates........ 18
Section 5.13. Rights of Securityholders................................. 18
Section 5.14. Rights with Respect to Notes.............................. 20
ARTICLE 6 ACTS OF SECURITYHOLDERS; MEETINGS; VOTING....................... 22
Section 6.1. Limitations on Voting Rights.............................. 22
Section 6.2. Notice of Meetings........................................ 23
Section 6.3. Meetings of Trust Preferred Securityholders............... 24
Section 6.4. Voting Rights............................................. 24
Section 6.5. Proxies, etc.............................................. 24
Section 6.6. Securityholder Action by Written Consent.................. 24
Section 6.7. Record Date for Voting and Other Purposes................. 24
Section 6.8. Acts of Securityholders................................... 25
Section 6.9. Inspection of Records..................................... 26
ARTICLE 7 REPRESENTATIONS AND WARRANTIES.................................. 26
Section 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee.......................... 26
Section 7.2. Representations and Warranties of Depositor............... 27
ARTICLE 8 THE TRUSTEES.................................................... 27
Section 8.1. Certain Duties and Responsibilities....................... 27
Section 8.2. Certain Notices........................................... 29
Section 8.3. Certain Rights of Property Trustee........................ 29
Section 8.4. Not Responsible for Recitals or Issuance of
Securities................................................ 31
Section 8.5. May Hold Securities....................................... 31
Section 8.6. Compensation; Indemnity; Fees............................. 31
Section 8.7. Corporate Property Trustee Required; Eligibility
of Trustees............................................... 32
Section 8.8. Conflicting Interests..................................... 32
Section 8.9. Co-Trustees and Separate Trustee.......................... 33
Section 8.10. Resignation and Removal, Appointment of Successor......... 34
Section 8.11. Acceptance of Appointment by Successor.................... 35
Section 8.12. Merger, Conversion, Consolidation or Succession
to Business............................................... 36
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TABLE OF CONTENTS
(CONTINUED)
Section 8.13. Preferential Collection of Claims Against TECO,
Depositor or Trust........................................ 36
Section 8.14. Reports by the Property Trustee........................... 36
Section 8.15. Reports to the Property Trustee........................... 37
Section 8.16. Evidence of Compliance with Conditions Precedent.......... 37
Section 8.17. Number of Trustees........................................ 37
ARTICLE 9 TERMINATION, LIQUIDATION AND MERGER............................. 37
Section 9.1. Dissolution Upon Expiration Date.......................... 37
Section 9.2. Special Distribution Events............................... 37
Section 9.3. Termination............................................... 38
Section 9.4. Liquidation and Distribution.............................. 38
Section 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust................................. 39
ARTICLE 10 MISCELLANEOUS PROVISIONS........................................ 40
Section 10.1. Limitation of Rights of Securityholders.................. 40
Section 10.2. Amendment................................................ 40
Section 10.3. Separability............................................. 41
Section 10.4. Governing Law............................................ 42
Section 10.5. Payments Due on Non-Business Day......................... 42
Section 10.6. Successors............................................... 42
Section 10.7. Headings................................................. 43
Section 10.8. Reports, Notices and Demands............................. 43
Section 10.9. Agreement Not to Petition................................ 43
Section 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act............................................ 44
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee
and Indenture............................................ 44
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of ________________, 20__
among (i) TECO Funding Company __, LLC, a Delaware limited liability company
(including any successors or assigns, the "DEPOSITOR"), (ii) The Bank of New
York, a New York banking corporation, as property trustee (the "PROPERTY
TRUSTEE" and, in its separate corporate capacity and not in its capacity as
Property Trustee, the "BANK"), (iii) The Bank of New York (Delaware), a Delaware
banking corporation, as Delaware trustee (the "DELAWARE TRUSTEE") (the Property
Trustee and the Delaware Trustee are referred to together as the "TRUSTEES") and
(v) the several Holders, as hereinafter defined (this "TRUST AGREEMENT").
W I T N E S S E T H :
WHEREAS, the Depositor and the Trustees have heretofore duly declared
and established a business trust pursuant to the Delaware Business Trust Act by
entering into that certain Trust Agreement, dated as of _________, 2000 (the
"ORIGINAL TRUST AGREEMENT"), and by the execution and filing with the Secretary
of State of the State of Delaware of the Certificate of Trust, filed on _______,
2000, attached as EXHIBIT A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance and sale of the Trust Preferred Securities
by the Trust pursuant to the Underwriting Agreement, and (ii) the acquisition by
the Trust from the Depositor of all of the right, title and interest in the
Company Preferred Securities;
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 1
DEFINED TERMS
SECTION 1.1. 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
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(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 6.8.
"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.
"AFFILIATE SECURITIES" has the meaning specified in Section 6.3.
"BANK" has the meaning specified in the preamble to this Trust
Agreement.
"BANKRUPTCY EVENT" means, with respect to any Person:
(a) 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 any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or 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 any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any 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
and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by such Person in furtherance of any such action.
"BANKRUPTCY LAWS" has the meaning specified in Section 10.9.
"BOOK-ENTRY TRUST PREFERRED SECURITIES CERTIFICATES" means a
beneficial interest in the Trust Preferred Securities Certificates,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 5.10.
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"BUSINESS DAY" means a day on which banks are open for
business in New York and Delaware.
"CERTIFICATE DEPOSITORY AGREEMENT" means the agreement among
the Trust, the Depositor and The Depository Trust Company, as the
initial Clearing Agency, dated as of the Closing Date, relating to the
Trust Preferred Securities Certificates, substantially in the form
attached as EXHIBIT B, as the same may be amended and supplemented from
time to time.
"CLEARING AGENCY" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange
Act of 1934, as amended. The Depository Trust Company will be the
initial Clearing Agency.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time
a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
"CLOSING DATE" has the meaning specified in the Underwriting
Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, 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.
"COMPANY PREFERRED SECURITIES" means the __% Company Preferred
Securities, aggregate liquidation preference $__________ offered by the
Depositor pursuant to a prospectus dated ______, 20__.
"CORPORATE TRUST OFFICE" means the principal office of the
Property Trustee.
"DEFINITIVE TRUST PREFERRED SECURITIES CERTIFICATES" means
either or both (as the context requires) of (a) Trust Preferred
Securities Certificates issued as Book-Entry Trust Preferred Securities
Certificate as provided in Section 5.10 and (b) Trust Preferred
Securities Certificates issued in certificated, fully registered form
as provided in Section 5.12.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Section 3801, et seq., as it may be
amended from time to time.
"DELAWARE TRUSTEE" means the corporation identified as the
"DELAWARE TRUSTEE" in the preamble to this Trust Agreement solely in
its capacity as Delaware Trustee of the Trust created 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.
"DEPOSITOR" has the meaning specified in the preamble to this
Trust Agreement.
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"DISTRIBUTION DATE" has the meaning specified in Section
4.1(c).
"DISTRIBUTIONS" means amounts payable in respect of the Trust
Preferred Securities as provided in Section 4.1.
"DIVIDEND" shall mean a Preferred Dividend as defined in the
LLC Agreement.
"EXPIRATION DATE" has the meaning specified in Section 9.1.
"GLOBAL CERTIFICATE" means the single global Trust Preferred
Securities Certificate held by the Clearing Agency representing the
Trust Preferred Securities.
"GUARANTEE" means the Guarantee Agreement executed and
delivered by TECO and The Bank of New York, as Guarantee Trustee,
contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Company Preferred
Securities, as amended from time to time.
"INDENTURE" means the Indenture, dated as of August 17, 1998,
between TECO and the Indenture Trustee, as supplemented by a ________
Supplemental Indenture dated as of _______, 20__, relating to the
Notes, each as amended or supplemented from time to time.
"INDENTURE TRUSTEE" means The Bank of New York, a New York
banking corporation, as trustee under the Indenture and any successor
thereto.
"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 (a) with respect to a redemption of Trust
Preferred Securities, Trust Preferred Securities having an aggregate
Liquidation Amount equal to the Liquidation Preference of Company
Preferred Securities to be contemporaneously redeemed in accordance
with the LLC Agreement, the redemption proceeds of which will be used
to pay the Redemption Price of such Trust Preferred Securities, and (b)
with respect to a distribution of Notes to Holders of Trust Preferred
Securities in connection with a dissolution or liquidation of the Trust
and the Depositor, Notes having a principal amount equal to the
aggregate Liquidation Amount of the Trust Preferred Securities of the
Holder to whom such Notes are distributed.
"LIQUIDATION AMOUNT" means the stated amount (expressed in
U.S. Dollars) per Trust Preferred Security.
"LIQUIDATION DATE" means the date upon which a Liquidation
Distribution will be made.
"LIQUIDATION DISTRIBUTION" has the meaning specified in
Section 9.4(d).
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"LIQUIDATION PREFERENCE" has the meaning specified in the LLC
Agreement.
"LLC AGREEMENT" means the Amended and Restated Limited
Liability Company Agreement of the Depositor, dated as of ______,
20___, as amended from time to time.
"MINISTERIAL ACTION" means the taking of an action, such as
filing a form or making an election, or pursuing some other similar
reasonable measure that will have no adverse effect on the Trust, the
Depositor or the Holders of the Trust Preferred Securities and will
involve no material cost.
"1940 ACT" means the Investment Company Act of 1940, as
amended.
"NOTE EVENT OF DEFAULT" means an event of default under the
Indenture.
"NOTES" means the aggregate principal amount of TECO's _____%
Junior Subordinated Notes Due __________, issued pursuant to the
Indenture.
"OFFICER" has the meaning specified in the LLC Agreement.
"OFFICERS' CERTIFICATE" means a certificate signed by two
Officers of the Depositor and delivered to the appropriate Trustee. One
of the officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or accounting
officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee 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.
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"OUTSTANDING," when used with respect to Trust Preferred
Securities, means, as of the date of determination, all Trust Preferred
Securities theretofore executed and delivered under this Trust
Agreement, except:
(a) Trust Preferred Securities theretofore cancelled by
the Property Trustee or delivered to the Property Trustee for
cancellation;
(b) Trust 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
Trust Preferred Securities; provided that, if such Trust Preferred
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Preferred Securities which have been paid for
or in exchange for or in lieu of which other Trust Preferred Securities
have been executed and delivered pursuant to Sections 5.4, 5.5, 5.12
and 5.13;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the outstanding Trust Preferred
Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Trust 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 Trust Preferred Securities that such
Trustee actually knows to be so owned shall be so disregarded and (b)
the foregoing shall not apply at any time when all of the outstanding
Trust Preferred Securities are owned by the Depositor, one or more of
the Trustees and/or any such Affiliate. Trust 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
Property Trustee the pledgee's right so to act with respect to such
Trust Preferred Securities and that the pledgee is not the Depositor or
any Affiliate of the Depositor.
"OWNER" means each Person who is the beneficial owner of a
Book-Entry Trust Preferred Securities Certificate as reflected in the
records of the Clearing Agency or, if a Clearing Agency Participant is
not the Owner, then as reflected in the records of a Person maintaining
an account with such Clearing Agency (directly or indirectly, in
accordance with the rules of such Clearing Agency).
"PAYING AGENT" means any paying agent or co-paying agent
appointed pursuant to Section 5.9 and shall initially be the Bank.
"PAYMENT ACCOUNT" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the
Bank in its trust department for the benefit of the Securityholders in
which all amounts paid in respect of the Company Preferred Securities
will be held and from which the Property Trustee shall make payments to
the Securityholders in accordance with Sections 4.1 and 4.2.
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"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.
"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
heretofore created and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
"REDEMPTION DATE" means, with respect to any Trust Preferred
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement as set forth in Section 4.2(b);
provided that each Redemption Date of the Company Preferred Securities
and the stated maturity of the Company Preferred Securities shall be a
Redemption Date for a Like Amount of Trust Preferred Securities.
"REDEMPTION PRICE" means, with respect to any Trust Preferred
Security, the Liquidation Amount of such Trust Preferred Security, plus
accumulated but unpaid Distributions to the Redemption Date, plus the
related amount of the premium, if any, paid by the Depositor upon the
concurrent redemption of a Like Amount of Company Preferred Securities,
allocated on a pro rata basis (based on Liquidation Amounts) among the
Trust Preferred Securities.
"RELEVANT TRUSTEE" shall have the meaning specified in Section
8.10.
"SECURITIES REGISTER" and "SECURITIES REGISTRAR" have the
respective meanings specified in Section 5.4.
"SECURITYHOLDER" or "HOLDER" means a Person in whose name a
Trust Preferred Security is registered in the Securities Register; any
such Person being a beneficial owner of the Trust within the meaning of
the Delaware Business Trust Act.
"SERIES" means a series of securities or the securities of the
series issued under the Indenture.
"TECO" means TECO Energy, Inc., a Florida corporation.
"TRUST" means the Delaware business trust created and
continued hereby and identified on the cover page to this Trust
Agreement.
"TRUST AGREEMENT" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including all
exhibits hereto, including, for all purposes of this Trust Agreement
and any such modification, amendment or supplement, the provisions of
the Trust Indenture Act that are deemed to be a part of and govern this
Trust Agreement and any such modification, amendment or supplement,
respectively.
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"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 PREFERRED SECURITIES CERTIFICATE" means a certificate
evidencing ownership of Trust Preferred Securities, substantially in
the form attached as EXHIBIT C.
"TRUST PREFERRED SECURITY" means an undivided beneficial
ownership interest in the assets of the Trust, having a Liquidation
Amount of $___ and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein and representing a
corresponding amount of the Company Preferred Securities.
"TRUST PROPERTY" means (a) the Company Preferred Securities,
(b) any cash on deposit in, or owing to, the Payment Account and (c)
all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held or deemed to be held by the
Property Trustee pursuant to the terms of this Trust Agreement.
"TRUSTEES" means, collectively, the Property Trustee and the
Delaware Trustee.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement,
dated as of [__________], among TECO, the Trust, the Depositor and the
underwriters named therein.
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. NAME.
The Trust continued hereby shall be known as "TECO CAPITAL TRUST __,"
as such name may be modified from time to time by the Depositor following
written notice to the Holders of Trust Preferred Securities and the other
Trustees, in which name the Property Trustee may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and ▇▇▇ and be sued.
SECTION 2.2. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS.
The address of the Delaware Trustee in the State of Delaware is ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Department, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Securityholders and the
Depositor. The principal executive office of the Trust is ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇ (Delaware), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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SECTION 2.3. CONTINUATION OF TRUST.
The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor is not a beneficial owner of the Trust or Trust Property and shall
make no claim upon the Trust Property for the payment of such expenses.
The Trust exists for the sole purpose of issuing Trust Preferred
Securities representing a corresponding amount of the Company Preferred
Securities held by the Trust and performing functions directly related thereto,
as set forth in Section 2.5. The Depositor hereby delivers to the Trustee for
deposit in the Trust one or more Company Preferred Securities Certificates
representing Company Preferred Securities with an aggregate liquidation
preference of $_______ for the benefit of the Holders of the Trust Preferred
Securities. Each Holder is intended by the Depositor to be the beneficial owner
of an amount of Company Preferred Securities represented by the amount of Trust
Preferred Securities held by such Holder and collectively, the Holders are the
sole beneficial owners of the Trust and the Trust Property. To the fullest
extent permitted by law, without the need for any other action of any Person,
including the Trustees or any other Holder, each Holder shall be entitled to
enforce, in the name of the Trust, the rights of the Trust under the Company
Preferred Securities and the Guarantee represented by the Trust Preferred
Securities held by such Holder. Any recovery on such an enforcement action shall
belong solely to such Holder who brought the action, not to the Trust, the
Trustees or any other Holder individually or to the Holders as a group. The
Property Trustee shall have the power and authority (subject to the Trustee's
rights, privileges and protections contained elsewhere herein) to enforce any of
the Trust's rights in respect of the Company Preferred Securities which are not
enforced by any Holder. Subject to Article 10, the Trust shall be irrevocable.
The Property Trustee hereby acknowledges receipt of one or more Company
Preferred Security Certificates representing Company Preferred Securities having
an aggregate liquidation preference of $_________ registered in the name of the
Trust, and its acceptance on behalf of the Trust of the Company Preferred
Securities, and declares that the Trust shall hold the Company Preferred
Securities for the benefit of the Holders of the Trust Preferred Securities.
SECTION 2.4. ISSUANCE OF THE TRUST PREFERRED SECURITIES.
On ______, 20__, the Depositor, on behalf of the Trust and pursuant to
the Original Trust Agreement, executed and delivered the Underwriting Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, the
Property Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Underwriters named in the Underwriting Agreement,
Trust Preferred Securities Certificates, registered in the name of the nominee
of the initial Clearing Agency, representing ____________________ Trust
Preferred Securities having an aggregate Liquidation Amount of $__________,
against receipt of such aggregate purchase price of such Trust Preferred
Securities of $__________. If there is a Closing Date as a result of the
exercise of an over-allotment option pursuant to the Underwriting Agreement, the
Property Trustee, on behalf of the Trust, shall execute in accordance with
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Section 5.2 and deliver to the Underwriters named in the Underwriting Agreement
Trust Preferred Securities Certificates, registered in the name of the nominee
of the initial Clearing Agency, representing up to __________ Trust Preferred
Securities having an aggregate Liquidation Amount of up to $__________, against
receipt of such aggregate purchase price of such Trust Preferred Securities of
$__________, on the date specified pursuant to the Underwriting Agreement.
SECTION 2.5. DECLARATION OF TRUST AND BUSINESS OF THE TRUST.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Preferred Securities and use the proceeds from such sale to acquire
the Company Preferred Securities, and (b) to engage in those activities
necessary, convenient or incidental thereto. The only assets of the Trust shall
be the Trust Property, including the Company Preferred Securities and the
related right of the Holders under the Guarantee. The Trust may not acquire any
other assets, issue any other equity securities or any debt securities or engage
in any other activities. The Trust shall have the power and authority to
execute, deliver and perform its obligations under the LLC Agreement and other
agreements to which the Trust is a party.
SECTION 2.6. APPOINTMENT OF TRUSTEES
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, and the
Trustees hereby accept such appointment. 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 Trust and the Securityholders. The
Property Trustee 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. 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 set forth herein, except as required by the Delaware
Business Trust Act. 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(a) of the Delaware Business Trust Act.
SECTION 2.7. 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 Trust and the Securityholders in
accordance with this Trust Agreement. The Securityholders shall be the sole
beneficial owners of the Trust Property.
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of
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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 Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of Dividends and Distributions, and any
other payments or proceeds with respect to, the Company Preferred Securities.
Amounts held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
ARTICLE 4
CERTAIN TERMS OF THE TRUST PREFERRED SECURITIES
SECTION 4.1. DISTRIBUTIONS.
(a) Whenever (and to the extent) the Trust receives any cash
payments representing a Dividend or redemption payment on the Company Preferred
Securities, or payments pursuant to the Guarantee in respect of such Dividend or
redemption payment, the Trustee, acting directly or through any Paying Agent,
shall distribute such amounts to Holders of the Trust Preferred Securities on
the record date fixed pursuant to Section 4.1(c) pro rata in proportion to the
Liquidation Amount of the Trust Preferred Securities held by such Holder.
(b) Upon receipt by the Trust of any Liquidation Preference from
the Depositor upon the liquidation of the Depositor, after satisfaction of
creditors of the Trust as required by applicable law, the Trust shall distribute
the same to the Holders of the Trust Preferred Securities on the record date
fixed pursuant to Section 4.1(c), in proportion to the respective liquidation
preferences of the Company Preferred Securities which were represented by the
Trust Preferred Securities held by such Holders.
(c) Each distribution on the Trust Preferred Securities in respect
of Dividends on the Company Preferred Securities ("REGULAR DISTRIBUTIONS") shall
be payable to the Holders of record as they appear on the Securities Register on
the corresponding record date. The record date for Regular Distributions is the
fifteenth calendar day prior to the relevant distribution date (the
"DISTRIBUTION DATE"). Whenever any other distribution shall become payable, or
whenever the Property Trustee shall receive notice of any meeting at which
holders of the Company Preferred Securities are entitled to vote or of which
holders of the Company Preferred Securities are entitled to notice, the Property
Trustee shall in each such instance fix a record date (which shall be the same
date as the record date fixed by the Depositor with respect to the Company
Preferred Securities, of which the Depositor shall promptly inform the Property
Trustee), for the determination of the Holders of the Trust Preferred Securities
who shall be entitled (i) to receive such distribution, or (ii) to receive
notice of, and to give instructions for the exercise of voting rights at, any
such meeting.
(d) As long as the Trust Preferred Securities are in book-entry
form, payments on the Trust Preferred Securities shall be made to the Clearing
Agency, which shall credit the relevant
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accounts at the Clearing Agency on the scheduled payment dates. The payments
shall be distributed to participants, indirect participants and beneficial
owners of the Trust Preferred Securities in accordance with the Clearing
Agency's procedures.
(e) If definitive Trust Preferred Securities are issued as
described in Section 5.12, payments on the Trust Preferred Securities shall be
made by check mailed to the address of the Holder entitled to receive the
payment, as such address appears in the Register.
(f) Payments of the redemption price of, and distributions in
liquidation on, Trust Preferred Securities shall be made upon surrender of such
Trust Preferred Securities at the office of the Paying Agent. The Depositor
shall pay Dividends on, the redemption price of, and Liquidation Preferences on,
the Company Preferred Securities directly to the Paying Agent for distribution
to the Holders of the Trust Preferred Securities in accordance with the terms of
this Trust Agreement and the paying agency agreement as then in effect with the
Paying Agent.
(g) If any distributions on the Trust Preferred Securities would
be payable on a day that is not a Business Day, that distribution shall instead
be made on the next Business Day, except that if that Business Day falls in the
next calendar year, the distribution shall be made on the preceding Business
Day. No interest or other payment shall be due as a result of any such delay.
SECTION 4.2. REDEMPTION.
(a) The Trust Preferred Securities shall be redeemed only upon
redemption of the Company Preferred Securities.
(b) If the Depositor redeems the Company Preferred Securities in
accordance with the LLC Agreement, then the Depositor shall give the Property
Trustee at least 35 days' prior notice before doing so. The Property Trustee
shall mail the notice of the redemption not less than 25 days prior to the date
fixed for redemption (the "REDEMPTION DATE") of the Company Preferred Securities
to the Holders of the Trust Preferred Securities as provided under Section 10.8.
No defect in the notice of redemption or in the mailing or delivery thereof
shall affect the validity of the redemption proceedings. The Depositor shall
provide the Property Trustee with such notice, and each such notice shall state:
(i) the Redemption Date, (ii) the redemption price at which the Trust Preferred
Securities and the Company Preferred Securities are to be redeemed, (iii) that
all outstanding Trust Preferred Securities are to be redeemed or, in the case of
a redemption of fewer than all outstanding Trust Preferred Securities in
connection with a partial redemption of the Company Preferred Securities, the
amount of such Trust Preferred Securities to be so redeemed and (iv) the place
or places where Trust Preferred Securities to be redeemed are to be surrendered
for redemption.
(c) If only some of the outstanding Trust Preferred Securities are
to be redeemed, the Trust Preferred Securities to be redeemed shall be selected
in accordance with the Clearing Agency's procedures. If the Trust Preferred
Securities do not remain registered in the name of the Clearing Agency or its
nominee and only some of the outstanding Trust Preferred Securities are to be
redeemed, the Trust Preferred Securities shall be redeemed proportionally or
selected for redemption pursuant to the rules of any securities exchange on
which the Trust Preferred
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Securities are listed at that time. The Depositor shall promptly notify the
Registrar and Transfer Agent for the Trust Preferred Securities, in writing, of
the Trust Preferred Securities selected for redemption.
(d) The Depositor agrees that if a partial redemption of the
Company Preferred Securities would result in a delisting of the Trust Preferred
Securities from any securities exchange on which the Trust Preferred Securities
are then listed, the Depositor shall redeem the Company Preferred Securities
only in whole.
(e) On the date of redemption of the Company Preferred Securities,
so long as the Depositor has deposited with the Paying Agent, on behalf of the
Trust the aggregate amount payable upon redemption of all the Company Preferred
Securities held by the Trust to be redeemed, the Paying Agent on behalf of the
Trust shall irrevocably deposit with the Clearing Agency, by 12:00 noon, New
York City time on the redemption date, funds sufficient to pay the redemption
price and give the Clearing Agency irrevocable instructions to pay the
redemption price to the Holders of the Trust Preferred Securities to be
redeemed.
(f) Once the Paying Agent has received this deposit, all rights of
the Holders of the Trust Preferred Securities called for redemption shall end,
except their right to receive the redemption price, without interest. If any
date fixed for redemption of the Trust Preferred Securities is not a Business
Day, then the Redemption Price shall instead be paid on the next Business Day,
except that if that Business Day falls in the next calendar year, the redemption
price shall be paid on the preceding Business Day. No interest or other payment
shall be due as a result of any such adjustment.
SECTION 4.3. PAYMENT PROCEDURES.
Payments of Distributions in respect of the Trust 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 or, if the Trust Preferred
Securities are held by a Clearing Agency, such Distributions shall be made to
the Clearing Agency in immediately available funds, which shall credit the
relevant Persons' accounts at such Clearing Agency on the applicable
distribution dates.
SECTION 4.4. TAX RETURNS AND REPORTS.
The Depositor shall prepare (or cause to be prepared) 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
Depositor shall (a) prepare and file (or cause to be prepared and filed) the
appropriate Internal Revenue Service 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 appropriate Internal
Revenue Service form required to be provided or the information required to be
provided on such form. The Depositor, or its appointee, 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 Preferred Securities.
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ARTICLE 5
TRUST PREFERRED SECURITIES CERTIFICATES
SECTION 5.1. INITIAL OWNERSHIP.
The Property Trustee hereby acknowledges receipt of one or more of
Company Preferred Security Certificates representing Company Preferred
Securities having an aggregate liquidation preference of [$________] registered
in the name of the Trust, and its acceptance on behalf of the Company Preferred
Securities and declares that the Trust shall hold the Company Preferred
Securities for the benefit of the Securityholders.
SECTION 5.2. THE TRUST PREFERRED SECURITIES CERTIFICATES.
The Trust Preferred Securities Certificates shall be issued in minimum
denominations of $___ Liquidation Amount and integral multiples of $___ in
excess thereof. The Trust Preferred Securities Certificates shall be executed on
behalf of the Trust by manual signature of an authorized signatory of the
Property Trustee. Trust Preferred Securities Certificates bearing the manual
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, 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 Preferred Securities Certificates or did not hold such
offices at the date of delivery of such Trust Preferred Securities Certificates.
A transferee of a Trust Preferred Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Preferred Securities Certificate in such transferee's name pursuant to Sections
5.4, 5.12 and 5.13.
SECTION 5.3. EXECUTION AND DELIVERY OF TRUST PREFERRED SECURITIES
CERTIFICATES.
At each Closing Date, the Depositor (or its appointee) shall cause
Trust Preferred Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.3 and 2.4, to be executed on behalf of the Trust and
delivered to or upon the written order of the Depositor (or its appointee),
signed by its President, or a Vice President, its Treasurer or an Assistant
Treasurer, and its Secretary or an Assistant Secretary without further action by
the Depositor (or its appointee), and authenticated by the Property Trustee in
authorized denominations.
SECTION 5.4. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST PREFERRED
SECURITIES CERTIFICATES.
The Property Trustee shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8, a register or registers for the
purpose of registering Trust Preferred Securities Certificates and transfers and
exchanges of Trust Preferred Securities Certificates (the "SECURITIES REGISTER")
in which, the registrar designated by the Depositor (the "SECURITIES
REGISTRAR"), subject to such reasonable regulations as it may prescribe, shall
provide for the registration of Trust Preferred Securities Certificates and
registration of transfers and exchanges
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of Trust Preferred Securities Certificates as herein provided. The Bank shall be
the initial Securities Registrar.
Upon surrender for registration of transfer of any Trust Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.8, the Property Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Trust Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
dated the date of execution by such Property Trustee.
The Securities Registrar shall not be required to register the transfer
of any Trust Preferred Securities that have been called for redemption. At the
option of a Holder, Trust Preferred Securities Certificates may be exchanged for
other Trust Preferred Securities Certificates in authorized denominations of the
same class and of a like aggregate Liquidation Amount upon surrender of the
Trust Preferred Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 5.8.
Every Trust 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 Property Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Trust Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Property Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Trust Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Trust Preferred Securities Certificates.
SECTION 5.5. MUTILATED, DESTROYED, LOST OR STOLEN TRUST PREFERRED
SECURITIES CERTIFICATES.
If (a) any mutilated Trust Preferred Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Preferred Securities Certificate and (b) there shall be delivered to the
Securities Registrar and the Property Trustee such security or indemnity as may
be required by them to save each of them harmless, then in the absence of notice
that such Trust Preferred Securities Certificate shall have been acquired by a
bona fide purchaser, the Depositor (or its appointee) on behalf of the Trust
shall execute, and the Property Trustee shall authenticate, and make available
for delivery, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Trust Preferred Securities Certificate, a new Trust Preferred
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Preferred Securities Certificate under this
Section, the Depositor (or its appointee) or the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Trust
Preferred Securities Certificate issued pursuant to this Section shall
constitute conclusive evidence of an undivided beneficial ownership interest in
the assets of the Trust, as if originally issued, whether or not the lost,
stolen or destroyed Trust Preferred Securities Certificate shall be found at any
time.
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SECTION 5.6. PERSONS DEEMED SECURITYHOLDERS.
The Property Trustee or the Securities Registrar shall treat the Person
in whose name any Trust Preferred Securities Certificate shall be registered in
the Securities Register as the owner of such Trust Preferred Securities
Certificate for the purpose of receiving distributions and for all other
purposes whatsoever, and neither the Property Trustees nor the Securities
Registrar shall be bound by any notice to the contrary.
SECTION 5.7. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Depositor shall furnish or cause to be furnished to
the Property Trustee (a) [quarterly] on or before January 1, April 1, July 1 and
October 1 in each year, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Securityholders as of the
most recent regular record date (as provided in Section 4.1(c)) and (b) promptly
after receipt by the Depositor of a request therefor from the Property Trustee,
such other information as the Property Trustee may reasonably require in order
to enable the Property Trustee to discharge its obligations under this Trust
Agreement, in each case to the extent such information is in the possession or
control of the Depositor and is not identical to a previously supplied list or
has not otherwise been received by the Property Trustee in its capacity as
Securities Registrar. The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Trust Agreement or under
the Trust Preferred Securities, and the corresponding rights of the Property
Trustee shall be as provided in the Trust Indenture Act. Each Holder, by
receiving and holding a Trust Preferred Securities Certificate, and each Owner
shall be deemed to have agreed not to hold the Depositor or the Property Trustee
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.8. MAINTENANCE OF OFFICE OR AGENCY.
The Trust shall maintain an office or offices or agency or agencies
where Trust Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trust in respect of the Trust Preferred Securities Certificates may be
served. The Trust initially designates The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Trustee
Administration, as its corporate trust office for such purposes. The Property
Trustee shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Registrar or any
such office or agency.
SECTION 5.9. 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
Property Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Payment Account for the purpose of making the distributions
referred to above. The Depositor may remove and replace the Paying Agent if the
Depositor determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Trust Agreement in any material
respect. The Paying Agent shall initially be the Bank. The Paying Agent may
choose any co-paying agent that is acceptable
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to the Property Trustee and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee and the Depositor. In the event that the Bank shall no longer
be the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Depositor shall appoint a successor that is acceptable to
the Property Trustee to act as Paying Agent (which shall be a bank or trust
company). The Depositor shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Depositor to execute and deliver to the
Property Trustee an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Property Trustee 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 removal of a Paying Agent, such Paying Agent shall
also return all funds in its possession to the Property Trustee. The provisions
of Sections 8.1, 8.3 and 8.6 herein shall apply to the Bank also in its role as
Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
SECTION 5.10. BOOK-ENTRY TRUST PREFERRED SECURITIES CERTIFICATES.
The Trust Preferred Securities Certificates, upon original issuance,
will be issued in the form of a typewritten Trust Preferred Securities
Certificate or Certificates representing Book-Entry Trust Preferred Securities
Certificates, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Trust. Such Trust Preferred Securities
Certificate or Certificates shall initially be registered on the Securities
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no beneficial owner will receive a Definitive Trust Preferred Securities
Certificate representing such beneficial owner's interest in such Trust
Preferred Securities, except as provided in Section 5.12. Unless and until
Definitive Trust Preferred Securities Certificates have been issued to
beneficial owners pursuant to Section 5.12:
(a) the provisions of this Section 5.10 shall be in full force and
effect;
(b) the Securities Registrar, the Paying Agent and the Trustees
shall be entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Trust Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Book-Entry Trust Preferred Securities Certificate and the
giving of instructions or directions to Owners of Book-Entry Trust Preferred
Securities) as the sole Holder of Book-Entry Trust Preferred Securities and
shall have no obligations to the Owners thereof;
(c) to the extent that the provisions of this Section 5.10
conflict with any other provisions of this Trust Agreement, the provisions of
this Section 5.10 shall control; and
(d) the rights of the Owners of the Book-Entry Trust Preferred
Securities Certificates shall be exercised only through the Clearing Agency and
shall be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive Trust
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Preferred Securities Certificates are issued pursuant to Section 5.12, the
initial Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Trust Preferred Securities
to such Clearing Agency Participants.
SECTION 5.11. NOTICES TO CLEARING AGENCY.
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Trust Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.12, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
SECTION 5.12. DEFINITIVE TRUST PREFERRED SECURITIES CERTIFICATES.
If (a) the Depositor advises the Property Trustee in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Trust Preferred Securities Certificates,
and the Depositor is unable to locate a qualified successor, (b) the Depositor
at its option advises the Property Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (c) after the
occurrence of a Note Event of Default, Owners of Trust Preferred Securities
Certificates representing beneficial ownership interests aggregating at least a
majority of the aggregate Liquidation Amount advise the Property Trustee in
writing that the continuation of a book-entry system through the Clearing Agency
is no longer in the best interest of the Owners of Trust Preferred Securities
Certificates, then the Property Trustee shall notify the Clearing Agency and the
Clearing Agency shall notify all Owners of Trust Preferred Securities
Certificates and the other Trustees of the occurrence of any such event and of
the availability of the Definitive Trust Preferred Securities Certificates to
Owners requesting the same. Upon surrender to the Property Trustee of the
typewritten Trust Preferred Securities Certificate or Certificates representing
the Book-Entry Trust Preferred Securities Certificates by the Clearing Agency,
accompanied by registration instructions, the Property Trustee shall execute the
Definitive Trust Preferred Securities Certificates in accordance with the
instructions of the Clearing Agency. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Trust Preferred Securities Certificates, the
Property Trustee shall recognize the Holders of the Definitive Trust Preferred
Securities Certificates as Securityholders. The Definitive Trust Preferred
Securities Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Property
Trustee, as evidenced by the execution thereof by the Property Trustee.
SECTION 5.13. RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with Section 2.7,
and the Securityholders shall not have any right or title therein other than the
undivided beneficial ownership interests in the assets of the Trust conferred by
their Trust Preferred 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 Preferred Securities shall be personal property
giving only the rights specifically set forth
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therein and in this Trust Agreement. The Trust 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 by the Trust. The Holders of the Trust Preferred Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) Any Person who is the Owner of the Trust Preferred Securities
represented by the Trust Preferred Securities Certificates held by the Clearing
Agency or, if a participant in the Clearing Agency is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly), in accordance with the rules of such Clearing
Agency, may withdraw all, but not less than all, of the Company Preferred
Securities represented by such Trust Preferred Securities by providing a written
notice to the Property Trustee, with evidence of beneficial ownership in form
satisfactory to the Property Trustee, and providing to the Depositor such
documents or information as the Depositor may request for tax reporting
purposes, at the Corporate Office or at such other office as the Property
Trustee may designate for such withdrawals, all in form satisfactory to the
Property Trustee, in its sole discretion. The Owner's notice shall also be
deemed to be such Owner's agreement to be subject to the terms of the LLC
Agreement applicable to the rights of holders of the Company Preferred
Securities.
Within a reasonable period after such a request has been properly made:
(i) the Depositor shall issue to the withdrawing Owner a Company Preferred
Security Certificate representing the amount of the Company Preferred Securities
so withdrawn, (ii) the Property Trustee, on behalf of the Trust, shall instruct
the Clearing Agency to reduce the amount of Trust Preferred Securities
represented by the Global Certificate held by the Clearing Agency by the
corresponding amount of the Company Preferred Securities withdrawn by the
withdrawing Owner and (iii) the Property Trustee shall reduce the amount of
Company Preferred Securities represented by the Global Certificate held by the
Trust accordingly.
Any Owner who wishes to withdraw the Company Preferred Securities in
accordance with this Section 5.13(b) shall be required to provide the Depositor
with a completed Form W-9 or such other documents or information as are
requested by the Depositor for tax reporting purposes and thereafter shall be
admitted to the Depositor as a member of the Depositor upon such Owner's receipt
of a Company Preferred Security Certificate registered in such Owner's name.
The Property Trustee shall deliver the Company Preferred Security
Certificates represented by the Trust Preferred Securities surrendered in
accordance with this Section 5.13(b) to the Owner at the Corporate Trust Office,
except that, at the request, risk and expense of the Owner and for the account
of the Owner, such delivery may be made at such other place as may be designated
by such Owner. The Property Trustee shall deliver such Company Preferred
Security Certificates only upon payment by such Owner to the Property Trustee of
all taxes and other governmental charges and any fees (including the fees and
expenses of the Property Trustee and its counsel) payable in connection with
such delivery and the transfer of such Company Preferred Security Certificates.
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Notwithstanding anything in this Section 5.13(b) to the contrary, if
the Company Preferred Securities represented by Trust Preferred Securities have
been called for redemption in accordance with the LLC Agreement, no Owner of
such Trust Preferred Securities may withdraw any or all of the Company Preferred
Securities represented by such Trust Preferred Securities.
(c) Any holder of Company Preferred Securities may redeposit
withdrawn Company Preferred Securities by delivering to the Property Trustee the
Company Preferred Security Certificate for the Company Preferred Securities to
be deposited, which are (i) if required by the Property Trustee properly
endorsed or accompanied by a properly executed instrument of transfer or
endorsement in form satisfactory to the Property Trustee and in compliance with
the terms of the LLC Agreement and (ii) accompanied by all such certifications
as may be required by the Property Trustee in its sole discretion and in
accordance with the provisions of this Agreement. Within a reasonable period
after such deposit is properly made, the Property Trustee shall instruct the
Clearing Agency to increase the amount of Trust Preferred Securities represented
by the Global Certificate held by the Clearing Agency by an amount equal to the
Company Preferred Securities so deposited. The Property Trustee shall only
accept the redeposit of such Company Preferred Securities upon payment by such
holder of the Company Preferred Securities to the Property Trustee of all taxes
and other governmental charges and any fees and expenses (including the fees and
expenses of the Property Trustee and its counsel) payable in connection with
such deposit and the transfer of the deposited Company Preferred Securities.
(d) If required by the Property Trustee, Company Preferred
Security Certificates presented for redeposit at any time shall also be
accompanied by an agreement or assignment, or other instrument satisfactory to
the Property Trustee, that shall provide for the prompt transfer to the Property
Trustee or its nominee of any distribution or other right that any Person in
whose name the Company Preferred Security Certificates are registered may
thereafter receive upon or in respect of such deposited Company Preferred
Securities, or in lieu thereof such agreement of indemnity or other agreement as
shall be satisfactory to the Property Trustee.
(e) Any Person presenting Company Preferred Security Certificates
for redeposit in accordance with this Section may be required from time to time
to file such proof of residence or other information, to execute such
certificates and to make such representations and warranties as the Property
Trustee may reasonably deem necessary or proper.
SECTION 5.14. RIGHTS WITH RESPECT TO NOTES.
(a) For so long as any Trust Preferred Securities remain
Outstanding, if, upon a Note Event of Default, the Indenture Trustee fails or
the holders of not less than 25% in aggregate principal amount of the
outstanding Notes fail to declare the principal of all of the Notes to be
immediately due and payable, the Holders of at least 25% in aggregate
Liquidation Amount of the Outstanding Trust Preferred Securities shall have such
right by a notice in writing to TECO and the Indenture Trustee; and upon any
such declaration such principal amount of and the accrued interest on all of the
Notes shall become immediately due and payable; provided that the payment of
principal and interest on such Notes shall remain subordinated to the extent
provided in the Indenture. At any time after such a declaration of acceleration
with respect to the Notes has been made and before a judgment or decree for
payment of the money due has been obtained by the Indenture Trustee as in the
Indenture provided, the Holders of a majority in Liquidation
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Amount of the Trust Preferred Securities, by written notice to the Property
Trustee, TECO and the Indenture Trustee may rescind and annul such declaration
and its consequences if:
(i) TECO has paid or deposited with the Indenture Trustee
a sum sufficient to pay
(A) all overdue installments of interest on all
of the Notes,
(B) the principal of (and premium, if any, on)
any Notes which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Notes, and
(C) all sums paid or advanced by the Indenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee,
its agents and counsel; and
(ii) all Events of Default with respect to the Notes,
other than the non-payment of the principal of the Notes which has
become due solely by such acceleration, have been cured or waived as
provided in Section 502 of the Indenture.
The Holders of a majority in aggregate Liquidation Amount of the
Outstanding Trust Preferred Securities may, on behalf of the Holders of all the
Trust Preferred Securities, waive any past default under the Indenture, except a
default in the payment of principal or interest (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited with the
Indenture Trustee) or a default in respect of a covenant or provision which
under the Indenture cannot be modified or amended without the consent of the
holder of each outstanding Note. No such waiver or rescission shall affect any
subsequent default or impair any right consequent thereon. Upon receipt by the
Property Trustee of written notice declaring such an acceleration, or rescission
and annulment thereof, by Holders of the Trust Preferred Securities all or part
of which is represented by Book-Entry Trust Preferred Securities Certificates, a
record date shall be established for determining Holders of outstanding Trust
Preferred Securities entitled to join in such notice, which record date shall be
at the close of business on the day the Property Trustee receives such notice.
The Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided, that, unless such declaration
of acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in such
notice prior to the day which is 90 days after such record date, such notice of
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.14(a).
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(b) For so long as any Trust Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms of
this Agreement and the Indenture, upon a Note Event of Default specified in
Section 501(1) or 501(2) of the Indenture, any Holder of Trust Preferred
Securities shall have the right to institute a proceeding directly against TECO,
pursuant to the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Notes having a principal amount equal to the
aggregate Liquidation Amount of the Trust Preferred Securities of such Holder (a
"DIRECT ACTION"). In connection with any such Direct Action, TECO will be
subrogated to the rights of any Holder of the Trust Preferred Securities to the
extent of any payment made by TECO to such Holder of Trust Preferred Securities
as a result of such Direct Action.
ARTICLE 6
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section, in Sections 8.10 and 10.2
and as otherwise required by law, no Holder of Trust 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
Preferred Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) If at any time, the holders of Company Preferred Securities
are entitled to vote under the LLC Agreement, the Property Trustee shall: (i)
notify the Holders of the Trust Preferred Securities of such right, (ii) request
specific direction from each Holder as to the vote with respect to the Company
Preferred Securities represented by such Holder's Trust Preferred Securities,
and (iii) vote the relevant Company Preferred Securities only in accordance with
such specific direction.
(c) Upon receiving notice of any meeting at which the holders of
Company Preferred Securities are entitled to vote, the Property Trustee shall,
as soon as practicable, mail to the Holders of the Trust Preferred Securities a
notice as provided under Section 10.8. The Depositor shall provide the form of
notice to the Trustee to be forwarded to the Holders of the Trust Preferred
Securities. The notice shall contain: (i) all the information that is contained
in the notice announcing the meeting of the Company Preferred Securities, (ii) a
statement that the Holders of the Trust Preferred Securities shall be entitled,
subject to any applicable provision of law, to direct the Property Trustee
specifically as to the exercise of the voting rights pertaining to the number of
the Company Preferred Securities represented by their respective Trust Preferred
Securities, and (iii) a brief description of the manner in which the Holders of
the Trust Preferred Securities may give such specific directions.
(d) If the Trust receives a written direction from a Holder, the
Property Trustee shall vote, or cause to be voted, the amount of the Company
Preferred Securities represented by such Holder's Trust Preferred Securities in
accordance with the instructions set forth in the direction. If the Property
Trustee does not receive specific instructions from any Holder, the Property
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Trustee shall abstain from voting the Company Preferred Securities represented
by such Holder's Trust Preferred Securities.
(e) The Depositor hereby agrees to take all reasonable action that
may be deemed necessary by the Property Trustee in order to enable the Property
Trustee to vote such Company Preferred Securities or cause such Company
Preferred Securities to be voted.
(f) If any proposed amendment to the Trust Agreement provides for,
or the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Trust Preferred Securities, whether by way of amendment to the Trust Agreement
or otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Trust Preferred Securities as a class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority in aggregate
Liquidation Amount of the Outstanding Trust Preferred Securities.
Notwithstanding any other provision of this Trust Agreement, no amendment to
this Trust Agreement may be made if, as a result of such amendment, the Trust
would be classified as an association taxable as a corporation for United States
Federal income tax purposes.
SECTION 6.2. NOTICE OF MEETINGS.
Notice of all meetings of the Trust Preferred Securityholders, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 10.8 to each Trust Preferred Securityholder of
record, 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 6.3. MEETINGS OF TRUST PREFERRED SECURITYHOLDERS.
No annual meeting of Securityholders is required to be held. The
Property Trustee, however, shall call a meeting of Securityholders to vote on
any matter upon the written request of the Trust Preferred Securityholders of
record of 25% in aggregate Liquidation Amount of the Trust Preferred Securities
(based upon their Liquidation Amount) and the Property Trustee may, at any time
in its discretion, call a meeting of Trust Preferred Securityholders to vote on
any matters as to which Trust Preferred Securityholders are entitled to vote.
All meetings of the Securityholders shall be held at the principal office of the
Trust or at another location determined by the Property Trustee, provided such
location is outside of the State of Florida.
Trust Preferred Securityholders of record of 50% of the Outstanding
Trust Preferred Securities (based upon their Liquidation Amount), present in
person or by proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Trust
Preferred Securityholders of record present, in person or by proxy, holding a
majority of the Trust Preferred Securities (based upon their Liquidation Amount)
held by the Trust Preferred Securityholders of record present, either in person
or by proxy, at such meeting shall constitute
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the action of the Securityholders, unless this Trust Agreement requires a
greater number of affirmative votes.
In connection with any action to be taken or determination to be made
under this Section 6.3, all Trust Preferred Securities held by TECO or any of
its affiliates or the Trustees (the "AFFILIATE SECURITIES") shall be treated as
if they were not outstanding.
SECTION 6.4. VOTING RIGHTS.
Securityholders shall be entitled to one vote for each $___ of
Liquidation Amount represented by their Trust Preferred Securities in respect of
any matter as to which such Securityholders are entitled to vote, provided that
in no event shall Securityholders holding Affiliate Securities be entitled to a
vote.
SECTION 6.5. 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 Property Trustee, or with such
other officer or agent of the Trust as the Property Trustee may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee. Only
Securityholders of record shall be entitled to vote. When Trust Preferred
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 Preferred 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 Preferred
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. No
proxy shall be valid more than three years after its date of execution.
SECTION 6.6. SECURITYHOLDER ACTION BY WRITTEN CONSENT.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding a majority of all Outstanding
Trust Preferred Securities (based upon their Liquidation Amount) 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, provided that for the purposes of this Section 6.6, the
Affiliate Securities shall be treated as if they were not outstanding.
SECTION 6.7. RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any distribution on the Trust Preferred Securities in respect of which a record
date is not otherwise provided for in this Trust Agreement, or for the purpose
of any other action, the Property Trustee may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or the
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payment of a distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.8. ACTS OF SECURITYHOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Securityholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders in
person or by an agent duly appointed in writing; and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to the Property Trustee. 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 8.1) conclusive in favor of the
Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments 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 receiving the same deems sufficient.
The ownership of Trust Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Preferred Security shall bind
every future Securityholder of the same Trust Preferred Security and the
Securityholder of every Trust Preferred 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
Preferred Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Preferred Security
may do so with regard to all or any part of the Liquidation Amount of such Trust
Preferred Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between the Securityholders and the Property
Trustee or among such Securityholders or Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Securityholder or Trustee under
this Article VI, then the determination of such matter by the Property Trustee
shall be conclusive with respect to such matter.
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SECTION 6.9. INSPECTION OF RECORDS.
Upon reasonable notice to 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 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE AND
THE DELAWARE TRUSTEE.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Property Trustee is a New York banking corporation;
(b) the Property Trustee meets the applicable eligibility
requirements set forth in Section 8.7, has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking corporation duly
organized, validly existing and in good standing in the State of Delaware;
(d) the Delaware Trustee meets the applicable eligibility
requirements set forth in Section 8.7, 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;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of each of the Property Trustee and the
Delaware Trustee enforceable against each of them 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;
(f) the execution, delivery and performance of this Trust
Agreement have been duly authorized by all necessary corporate or other action
on the part of the Property Trustee and the Delaware Trustee and do not require
any approval of stockholders of the Property Trustee and the Delaware Trustee
and such execution, delivery and performance will not (i) violate the charter or
by-laws of the Property Trustee or the Delaware Trustee, (ii) violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of, any Lien on any properties
included in the Trust Property pursuant to the provisions of, any indenture,
mortgage, credit agreement, license or other agreement or instrument to which
the Property Trustee or the Delaware Trustee is a party or by which it is
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bound, or (iii) violate any law, governmental rule or regulation of the United
States or the State of Delaware, as the case may be, governing the corporate,
banking, trust or general powers of the Property Trustee or the Delaware Trustee
(as appropriate in context) or any order, judgment or decree applicable to the
Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee or the Delaware
Trustee (as appropriate in context) contemplated herein or therein requires the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority or agency
under any existing Federal law governing the banking, trust or general powers of
the Property Trustee or the Delaware Trustee, as the case may be, or under the
laws of the United States or the State of Delaware; and
(h) there are no proceedings pending or, to the best of each of
the Property Trustee's and the Delaware Trustee's knowledge, threatened against
or affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
SECTION 7.2. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Preferred Securities Certificates issued at each
Closing Date on behalf of the Trust have been duly authorized and will have
been, duly and validly executed, issued and delivered by the Trustees pursuant
to the terms and provisions of, and in accordance with the requirements of, this
Trust Agreement, and the Securityholders will be, as of each such date, entitled
to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable
by the Trust (or the Trustees on behalf of the Trust) under the laws of the
State of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.
ARTICLE 8
THE TRUSTEES
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee,
subject to the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Trust Agreement shall require the Trustees to expend or risk their own
funds or otherwise incur any financial liability in the performance of any of
their duties hereunder, or in the exercise of any of their rights or powers, if
they shall have
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reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section.
Nothing in this Trust Agreement shall be construed to release the Property
Trustee from liability for its own gross negligent action, its own gross
negligent failure to act, or its own willful misconduct.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Preferred Securities shall be made only from the revenue
and proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Preferred Security, agrees
that it will look solely to the revenue and proceeds from the Trust Property to
the extent legally 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 Preferred Security or for any other liability in respect of
any Trust Preferred Security. This Section 8.1(b) does not limit the liability
of the Trustees expressly set forth elsewhere in this Trust Agreement and, in
the case of the Property Trustee, in the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own gross negligent action
or its own gross negligent failure to act or its own willful misconduct, except
that:
(i) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;
(ii) 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 not less than a
majority in aggregate Liquidation Amount of the Trust 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;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Company
Preferred Securities and the Payment Account shall be to deal with such
Property in 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 and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
in writing with the Depositor; and money held by the Property Trustee
need not be segregated from other funds held by it except in relation
to the Payment Account maintained by the Property Trustee pursuant to
Section 3.1 and except to the extent otherwise required by law; and
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(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Depositor with its duties under this
Trust Agreement, nor shall the Property Trustee be liable for the
default or misconduct of the Depositor.
SECTION 8.2. CERTAIN NOTICES.
Within ten Business Days after the receipt of notice of TECO's
exercise of its right to defer the payment of interest on the Notes pursuant to
the Indenture, the Property Trustee shall transmit, in the manner and to the
extent provided in Section 10.8, notice of such exercise to the Securityholders,
unless such exercise shall have been revoked.
SECTION 8.3. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively 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, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions of this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) 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 Trust Preferred Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee may, in its sole discretion, seek the
instructions of the Depositor by written notice requesting instructions. The
Property Trustee may take and shall be protected in taking such action as has
been directed 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,
gross negligence or willful misconduct;
(c) any direction or act of the Depositor contemplated by this
Trust Agreement shall be sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor;
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(e) 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 filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its selection
(which counsel may be counsel to the Depositor or any of its Affiliates, and may
include any of its employees) and the advice of such 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 and in
accordance with such advice; 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;
(g) 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 and liabilities
which might be incurred by it in compliance with such request or direction;
(h) 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, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, unless requested in writing to do so by one or more
Securityholders, but the Property Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Property Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Depositor, personally or by agent or attorney;
(i) 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, provided that the Property Trustee shall be responsible for
its own negligence or recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Preferred
Securities which instructions may only be given by the Holders of the same
proportion in aggregate Liquidation Amount of the Trust Preferred Securities as
would be entitled to direct the Property Trustee under the terms of the Trust
Preferred Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other action until
such instructions are received, and (iii) shall be protected in acting in
accordance with such instructions;
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Trust Agreement; and
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(l) 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,
upon advice of counsel, by it to be authorized or within the discretion or
rights or powers conferred upon it by this Trust Agreement.
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. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 8.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Trust Preferred Securities
Certificates shall be taken as the statements of the Depositor, and the Trustees
do not assume any responsibility for their correctness. The Trustees shall not
be accountable for the use or application by the Depositor of the proceeds of
the Company Preferred Securities.
SECTION 8.5. MAY HOLD SECURITIES.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Preferred Securities and, subject to Sections 8.8 and 8.13 and except as
provided in the definition of the term "Outstanding" in Article I, may otherwise
deal with the Trust with the same rights it would have if it were not a Trustee
or such other agent.
SECTION 8.6. COMPENSATION; INDEMNITY; FEES.
The Depositor and TECO agree:
(a) to pay to the Trustees from time to time such compensation as
shall be agreed to in writing between the Depositor and the Trustees for all
services rendered by them hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements and
advances 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 or bad faith; and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or agent of
any Trustee, and (iv) any employee or agent of the Trust or its Affiliates,
(referred to herein as an "INDEMNIFIED PERSON") from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust
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and in a manner such Indemnified Person reasonably believed to be within the
scope of authority conferred on such Indemnified Person by this Trust Agreement,
except that no Indemnified Person shall be entitled to be indemnified in respect
of any loss, damage or claim incurred by such Indemnified Person by reason of
gross negligence or willful misconduct with respect to such acts or omissions.
(d) to the fullest extent permitted by applicable law, to advance
expenses (including legal fees and expenses) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding, from time to time,
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Depositor of (i) a written affirmation by or on behalf of
the Indemnified Person of its or his good faith belief that it or he has met the
standard of conduct set forth in this Section 8.6 and (ii) an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in the preceding subsection.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement or the resignation or removal of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
SECTION 8.7. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF
TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Preferred Securities. The Property Trustee shall be a
Person with a principal place of business outside of the State of Florida and
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. The Property Trustee shall, at all times, administer the
Trust and the Trust Property outside the State of Florida and shall maintain its
books and records outside the State of Florida. If at any time the Property
Trustee with respect to the Trust Preferred Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
(b) There shall at all times be a Delaware Trustee with respect to
the Trust Preferred 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 and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to bind such
entity.
SECTION 8.8. 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
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and this Trust Agreement. The Depositor and any Trustee may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Trust Preferred Securities shall have no
rights by virtue of this Trust Agreement in and to such independent ventures or
the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. Neither the Depositor nor any Trustee shall be obligated to present
any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and the Depositor or any Trustee shall have the right to take for its
own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Trustee may
engage or be interested in any financial or other transaction with the Depositor
or any Affiliate of the Depositor, or may act as depository for, trustee or
agent for, or act on any committee or body of holders of, securities or other
obligations of the Depositor or its Affiliates.
SECTION 8.9. CO-TRUSTEES AND SEPARATE TRUSTEE.
Unless a Note 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 shall have power 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 the extent required by law 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. In case a Note Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
such appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity; provided, however, that any such trustee shall
not be a resident of the State of Florida and shall not have its principal place
of business in the State of Florida.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Preferred 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 specified hereunder, shall be
exercised, solely by such Trustees and not by such co-trustee or separate
trustee.
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(b) 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.
(c) 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, and, in case a Note 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.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee or
any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act
of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. RESIGNATION AND REMOVAL, APPOINTMENT OF SUCCESSOR.
No resignation or removal of any Trustee (the "RELEVANT TRUSTEE") and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Securityholders.
If the instrument of acceptance by the successor Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may, or any
Securityholder who has been a Securityholder of Trust Preferred Securities for
at least six months may, on behalf of himself and all others similarly situated,
petition (at the expense of the Depositor), any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
Unless a Note Event of Default shall have occurred and be continuing,
any Trustee may be removed at any time by act of the Depositor. If a Note Event
of Default shall have occurred and be continuing, the Property Trustee or the
Delaware Trustee, or both of them, may be removed at such time by Act of the
Holders of a majority in aggregate Liquidation Amount of
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the Trust Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust), or any Securityholder who has
been a Securityholder of Trust Preferred Securities for at least six months may,
on behalf of himself and all others similarly situated, petition (at the expense
of the Depositor), any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Note Event of Default shall have occurred and be
continuing, the Depositor, by act of the Depositor delivered to the retiring
Trustee, shall promptly appoint a successor Trustee or Trustees, and the
retiring Trustee shall comply with the applicable requirements of Section 8.11.
If the Property Trustee or the Delaware Trustee shall resign, be removed or
become incapable of continuing to act as the Property Trustee or the Delaware
Trustee, as the case may be, at a time when a Note Event of Default shall have
occurred and be continuing, the Trust Preferred Securityholders, by Act of the
Securityholders of a majority in aggregate Liquidation Amount of the Trust
Preferred Securities then Outstanding delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and
such successor Trustee shall comply with the applicable requirements of Section
8.11.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Depositor, incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by (a)
the act of the Property Trustee or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Delaware Trustee set forth in Section 8.7).
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the Trust Preferred Securities shall, upon payment of all amounts owed to it
hereunder, execute and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Preferred
Securities and the Trust and (b) shall add to or change any of the provisions of
this Trust Agreement as shall be necessary to provide for or facilitate the
administration of the Trust by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof
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and money held by such retiring Relevant Trustee hereunder with respect to the
Trust Preferred Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case way be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Subject to the requirements of Sections 8.7 and 8.9 hereof, any
corporation into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of such Relevant Trustee, shall be the
successor of such Relevant Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST TECO, DEPOSITOR
OR TRUST.
If and when the Property Trustee or the Delaware Trustee shall be or
become a creditor of TECO, the Depositor or the Trust (or any other obligor upon
the Notes, the Company Preferred Securities or the Trust Preferred Securities),
the Property Trustee or the Delaware Trustee, as the case may be, shall be
subject to and shall take all actions necessary in order to comply with the
provisions of the Trust Indenture Act regarding the collection of claims against
TECO, the Depositor or the Trust (or any such other obligor).
SECTION 8.14. REPORTS BY THE 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. If required by Section 313(a) of
the Trust Indenture Act, the Property Trustee shall, within sixty days after
each May 15 following the date of this Trust Agreement deliver to
Securityholders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the Nasdaq National Market or such other interdealer quotation
system or self-regulatory organization upon which the Trust Preferred Securities
are listed or traded, with the Commission and with the Depositor. The Depositor
will promptly notify the Property Trustee when any Trust Preferred Securities
are listed on any stock exchange, and of any delisting thereof.
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SECTION 8.15. REPORTS TO THE PROPERTY TRUSTEE.
The Depositor on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Depositor 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 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 shall be given in the form of an Officers' Certificate.
SECTION 8.17. NUMBER OF TRUSTEES.
The number of initial Trustees shall be two. The Property Trustee and
the Delaware Trustee may be the same Person, subject to the applicable
eligibility requirements set forth herein.
ARTICLE 9
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. DISSOLUTION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically dissolve on
December 31, 20__ (the "EXPIRATION DATE"). Thereafter, the Trust Property shall
be distributed in accordance with Section 9.4.
SECTION 9.2. SPECIAL DISTRIBUTION EVENTS.
The first to occur of any of the following events is a "SPECIAL
DISTRIBUTION EVENT", the occurrence of which shall cause a distribution of any
undistributed Company Preferred Securities to Securityholders and permit the
dissolution of the Trust:
(a) the written direction to the Property Trustee from the
Depositor, only if a Tax Event or an Investment Company Event (each as defined
in the Notes) has occurred, to distribute Company Preferred Securities to
Securityholders in exchange for the Trust Preferred Securities;
(b) the redemption of all of the Trust Preferred Securities;
(c) the withdrawal of all of the Company Preferred Securities by
the Securityholders; and
(d) the entry of an order for dissolution of the Trust by a court
of competent jurisdiction.
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SECTION 9.3. TERMINATION.
As soon as is practicable after the occurrence of an event referred to
in Section 9.1 or 9.2, and upon the completion of the winding up and liquidation
of the Trust under Section 9.4, the Trustees (each of whom is hereby authorized
to take such action) shall file a certificate of cancellation with the Secretary
of State of the State of Delaware terminating the Trust and, upon such filing,
the respective obligations and responsibilities of the Trustees and the Trust
created and continued hereby shall terminate.
SECTION 9.4. LIQUIDATION AND DISTRIBUTION.
(a) If a Special Distribution Event specified in clause (a), (c)
or (d) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder a Like Amount of
Company Preferred Securities, subject to Section 9.4(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail, postage prepaid
mailed not later than 30 nor more than 60 days prior to the Liquidation Date to
each Holder of Trust Preferred Securities at such Holder's address appearing in
the Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Preferred Securities will no longer be deemed to be Outstanding
and any Trust Preferred Securities Certificates not surrendered for
exchange will be deemed to represent a Like Amount of Company Preferred
Securities; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Preferred Securities
Certificates for Company Preferred Securities, or if Section 9.4(d)
applies receive a Liquidation Distribution, as the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(b) or 9.4(d) applies, in order to
effect the liquidation of the Trust and distribution of the Company Preferred
Securities 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 the Company Preferred
Securities in exchange for the Outstanding Trust Preferred Securities
Certificates.
(c) Except where Section 9.2(b) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Preferred Securities will no longer be deemed to
be Outstanding, (ii) certificates representing a Like Amount of Company
Preferred Securities will be issued to Holders of Trust Preferred Securities
Certificates, upon surrender of such certificates to the Property Trustee or
their agent for exchange, (iii) the Depositor shall use its reasonable efforts
to have the Company Preferred Securities listed on the New York Stock Exchange
or on such other exchange, interdealer quotation system or self-regulatory
organization as the Trust Preferred Securities are then listed, (iv) any Trust
Preferred Securities Certificates not so surrendered for exchange will
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be deemed to represent a Like Amount of Company Preferred Securities, accruing
Dividends at the rate provided for in the Company Preferred Securities from the
last Distribution Date on which a Distribution was made on such Trust Preferred
Securities Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of Dividends or Liquidation
Preference will be made to Holders of Trust Preferred Securities Certificates
with respect to such Company Preferred Securities) and (v) all rights of
Securityholders holding Trust Preferred Securities will cease, except the right
of such Securityholders to receive Company Preferred Securities upon surrender
of Trust Preferred Securities Certificates.
(d) In the event that, upon the Expiration Date or the occurrence
of a Special Distribution Event, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Company Preferred
Securities in the manner provided herein is determined by the Property Trustee
not to be practical, the Trust Property shall be liquidated, and the Trust shall
be wound-up by the Property Trustee in such manner as the Property Trustee
determines. In such event, the Trust Preferred Securityholders holding Trust
Preferred Securities at the time outstanding will be entitled to receive out of
the assets of the Trust available for distribution to Trust Preferred
Securityholders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, before any distribution of assets is made to the
holders of the Company Common Securities, an amount equal to the Liquidation
Amount per Trust Preferred Security plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the "LIQUIDATION
DISTRIBUTION"). If, upon any such winding-up, 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 the amounts payable by the
Trust on the Trust Preferred Securities shall be paid on a pro rata basis to the
Trust Preferred Securityholders (based upon Liquidation Amounts).
SECTION 9.5. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF
THE TRUST.
The Trust may not merge with or into, consolidate, convert into,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, except pursuant to this
Section 9.5 or Section 9.4. At the request of the Depositor, without the consent
of the Holders of the Trust Preferred Securities, the Property Trustee or the
Delaware Trustee, the Trust may merge with or into, consolidate, convert into,
amalgamate, or 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 (other than the State of Florida); provided, that (i) such
successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Trust Preferred Securities or (b) substitutes for the
Trust Preferred Securities other securities having substantially the same terms
as the Trust Preferred Securities (the "SUCCESSOR SECURITIES") so long as the
Successor Securities rank the same as the Trust 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 the same powers and duties as the Property Trustee as the
holder of the Company Preferred Securities, (iii) the Successor Securities are
listed or traded, or any Successor Securities will be listed upon notification
of issuance, on any national securities exchange or other organization on
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which the Trust Preferred Securities are then listed or traded, if any, (iv)
such merger, consolidation, conversion, amalgamation, replacement, conveyance,
transfer or lease does not cause the Trust Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized statistical
rating organization, (v) such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Trust 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, conversion, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
conversion, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Trust Preferred Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the 1940 Act,
(viii) TECO guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the Guarantee; and (ix)
the constituent trust and the successor entity maintain their principal
executive offices outside the State of Florida. Notwithstanding the foregoing,
the Trust shall not, except with the consent of Holders of 100% in Liquidation
Amount of the Trust Preferred Securities, consolidate, amalgamate, merge with or
into, convert 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
entity to consolidate, amalgamate, merge with or into, or replace it if such
consolidation, conversion, amalgamation, merger, replacement, conveyance,
transfer or lease 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 10
MISCELLANEOUS PROVISIONS
SECTION 10.1. LIMITATION OF RIGHTS OF SECURITYHOLDERS.
The death, incapacity, dissolution, bankruptcy or termination of any
Person having an interest, beneficial or otherwise, in Trust Preferred
Securities shall not operate to terminate this Trust Agreement nor dissolve,
terminate or annul the Trust 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 10.2. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders, (i) to
cure any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, 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, or
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(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 be classified
for United States Federal income tax purposes as a grantor trust at all times
that any Trust Preferred Securities are outstanding or to ensure that the Trust
will not be required to register as an investment company under the 1940 Act;
provided, however, that in the case of clause (ii), such action shall not
adversely affect in any material respect the interests of any Securityholder,
and any such amendments of this Trust Agreement shall become effective when
notice thereof is given to the Securityholders.
(b) Except as provided in Section 6.1(f) or Section 10.2(c)
hereof, any provision of this Trust Agreement may be amended by the Trustees and
the Depositor with (i) the consent of Trust Preferred Securityholders
representing not less than a majority (based upon aggregate Liquidation Amounts)
of the Trust Preferred Securities then Outstanding and (ii) receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not 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 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder, this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Preferred Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust Preferred
Securities as of a specified date or (ii) restrict the right of a Securityholder
to institute suit for the enforcement of any such payment on or after such date;
notwithstanding any other provision herein, without the unanimous consent of the
Securityholders, this paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement,
no Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor.
(f) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
SECTION 10.3. SEPARABILITY.
In case any provision in this Trust Agreement or in the Trust Preferred
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.
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SECTION 10.4. GOVERNING LAW.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF SECURITYHOLDERS,
THE TRUST, THE DEPOSITOR AND THE TRUSTEES SHALL BE GOVERNED BY AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF
LAWS OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION THAT WOULD CALL FOR THE
APPLICATION OF THE LAW OF ANY OTHER JURISDICTION OTHER THAN THE STATE OF
DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO THE
SECURITYHOLDERS, THE TRUST, THE DEPOSITOR, THE TRUSTEES OR THIS TRUST AGREEMENT
ANY PROVISION OF THE LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE
PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH
THE TERMS HEREOF (A) THE FILING WITH ANY COURT OR GOVERNMENT BODY OR AGENCY OF
TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE
REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A
TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL
CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY,
(D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A
TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL,
(F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR
CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING,
STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G) THE
ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS
ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR
LIABILITIES OR AUTHORITIES AND POWERS OF THE TRUSTEES AS SET FORTH OR REFERENCED
IN THIS TRUST AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT
APPLY TO THE TRUST.
SECTION 10.5. PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Preferred Security shall
be a day that is not a Business Day, then such payment need not be made on such
date but way be made an the next succeeding day that is a Business Day (except
as otherwise provided in this Trust Agreement) with the same force and effect as
though made on the date fixed for such payment, and no interest shall accrue
thereon for the period after such date.
SECTION 10.6. SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with
transactions permitted under Article Eight of the Indenture and pursuant to
which the assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder.
42
47
SECTION 10.7. HEADINGS.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8. REPORTS, NOTICES AND DEMANDS.
Any report, 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, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Trust Preferred Securityholder, to such Trust Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Depositor, to TECO Funding Company __, LLC c/o The
Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee or the Delaware Trustee shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee to The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Trustee Administration; and (b) with respect to the Delaware Trustee, to The
Bank of New York (Delaware), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Department. 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 10.9. AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agree 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, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization 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 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, 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 Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
43
48
SECTION 10.10. TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Trust Agreement
as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity securities
representing undivided beneficial ownership interests in the assets of the
Trust.
SECTION 10.11. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND
INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST PREFERRED 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 OWNERSHIP INTEREST IN SUCH TRUST PREFERRED SECURITY OF ALL THE TERMS
AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT TO 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
THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
THIS TRUST AGREEMENT is executed as of the date first above written.
TECO FUNDING COMPANY __, LLC,
as Depositor
By: _________________________________________
Name:
Title:
44
49
THE BANK OF NEW YORK,
as Property Trustee
By: ___________________________________
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: ___________________________________
Name:
Title:
TECO Energy, Inc. joins in this Trust Agreement solely for the purposes
of obligating itself under Section 8.6 of this Trust Agreement and not as
depositor, trustee or beneficiary.
TECO ENERGY, INC.
By: ___________________________________
Name:
Title:
45
50
EXHIBIT A
CERTIFICATE OF TRUST
OF
TECO CAPITAL TRUST __
This Certificate of Trust of TECO Capital Trust _____ (the "TRUST"),
dated ___________, 2000, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801 et seq.) (the "ACT").
1. NAME. The name of the business trust being formed hereby is
TECO Capital Trust __.
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:
The Bank of New York (Delaware)
▇▇▇▇▇ ▇▇▇▇ Center
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
3. EFFECTIVE DATE. This Certificate of Trust shall be effective
immediately upon its filing with the Secretary of State of the State of
Delaware.
In Witness Whereof, the undersigned, being all of the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written in accordance with Section 3811(a) of the Act.
THE BANK OF NEW YORK,
as Property Trustee
By: ___________________________________
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: ___________________________________
Name:
Title:
51
EXHIBIT B
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10041-0099
Attention: [________]
General Counsel's Office
Re:
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to
the issuance and deposit with The Depository Trust Company ("DTC") of the _____%
Trust Preferred Securities (the "TRUST PREFERRED SECURITIES"), of TECO Capital
Trust __, a Delaware business trust (the "ISSUER"), formed pursuant to a Trust
Agreement between TECO Funding Company __, LLC (the "COMPANY") and The Bank of
New York, as Property Trustee, and The Bank of New York (Delaware), as Delaware
Trustee. The payment of distributions on the Company Preferred Securities, and
payments due upon liquidation of the Company or redemption of the Trust
Preferred Securities, to the extent the Company has funds available for the
payment thereof are guaranteed by TECO Energy, Inc. ("TECO") to the extent set
forth in a Guarantee Agreement dated _______, _____, _____ by TECO with respect
to the Company Preferred Securities. TECO and the Issuer propose to sell the
Trust Preferred Securities to certain Underwriters (the "UNDERWRITERS") pursuant
to an Underwriting Agreement dated [ ] by and among the Underwriters, the
Issuer, the Company and TECO, and the Underwriters wish to take delivery of the
Trust Preferred Securities through DTC. [ ] is acting as transfer agent and
registrar with respect to the Trust Preferred Securities (then "TRANSFER AGENT
AND REGISTRAR").
To induce DTC to accept the Trust Preferred Securities as eligible for
deposit at DTC, and to act in accordance with DTC's rules with respect to the
Trust Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC
agree among each other as follows:
1. Prior to the closing of the sale of the Trust Preferred
Securities to the Underwriters, which is expected to occur on or about ________,
________, ________,there shall be deposited with or on behalf of DTC one or more
global certificates (individually and collectively, the "GLOBAL CERTIFICATE")
registered in the name of DTC's Trust Preferred Securities nominee, Cede & Co.,
representing an aggregate of Trust Preferred Securities and bearing the
following legend:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER
52
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
2. The Amended and Restated Trust Agreement of the Issuer
provides for the voting by holders of the Trust Preferred Securities under
certain limited circumstances. The Issuer shall establish a record date for such
purposes and shall, to the extent possible, give DTC notice of such record date
not less than 15 calendar days in advance of such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Trust Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance of
rights with respect to, the Trust Preferred Securities outstanding, the Issuer
or the Transfer Agent and Registrar shall send DTC a notice specifying: (a) the
amount of and conditions, if any, applicable to the payment of any such
distribution or any such offering or issuance of rights; (b) any applicable
expiration or deadline date, or any date by which any action on the part of the
holders of Trust Preferred Securities is required; and (c) the date any required
notice is to be mailed by or on behalf of the Issuer to holders of Trust
Preferred Securities or published by or on behalf of the Issuer (whether by mail
or publication, the "PUBLICATION DATE"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before the
Publication Date. The Issuer or the Transfer Agent and Registrar will forward
such notice either in a separate secure transmission for each CUSIP number or in
a secure transmission of multiple CUSIP numbers (if applicable) that includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date shall be not less
than 30 calendar days nor more than 60 calendar days prior to the payment of any
such distribution or any such offering or issuance of rights with respect to the
Trust Preferred Securities. After establishing the amount of payment to be made
on the Trust Preferred Securities, the Issuer or the Transfer Agent and
Registrar will notify DTC's Dividend Department of such payment 5 business days
prior to payment date. Notices to DTC's Dividend Department by telecopy shall be
sent to (▇▇▇) ▇▇▇-▇▇▇▇. Such notices by mail or by any other means shall be sent
to:
Manager, Announcements
Dividend Department
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
The Issuer or the Transfer Agent and Registrar shall confirm DTC's
receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
2
53
5. In the event of a redemption by the Issuer of the Trust
Preferred Securities, notice specifying the terms of the redemption and the
Publication Date of such notice shall be sent by the Issuer or the Transfer
Agent and Registrar to DTC not less than 30 calendar days prior to such event by
a secure means in the manner set forth in paragraph 4. Such redemption notice
shall be sent to DTC's Call Notification Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (516)
227-4190, and receipt of such notice shall be confirmed by telephoning (516)
227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
6. In the event of any invitation to tender the Trust Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes) shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
and receipt of such notice shall be confirmed by telephoning (▇▇▇) ▇▇▇-▇▇▇▇, or
by mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
7. All notices and payment advices sent to DTC shall contain the
CUSIP number or numbers of the Trust Preferred Securities and the accompanying
designation of the Trust Preferred Securities, which, as of the date of this
letter, is " % TRUST PREFERRED SECURITIES."
8. Distribution payments or other cash payments with respect to
the Trust Preferred Securities evidenced by the Global Certificate shall be
received by Cede & Co., as nominee of DTC, or its registered assigns in [ ]
funds on each payment date (or in accordance with existing arrangements between
the Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be
made payable to the order of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
9. DTC may by prior written notice direct the Issuer and the
Transfer Agent and Registrar to use any other telecopy number or address of DTC
as the number or address to which notices or payments may be sent.
3
54
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Trust Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities depositary
with respect to the Trust Preferred Securities at any time by giving at least 90
days' prior written notice to the Issuer and the Transfer Agent and Registrar
(at which time DTC will confirm with the Issuer or the Transfer Agent and
Registrar the aggregate number of Trust Preferred Securities deposited with it)
and discharging its responsibilities with respect thereto under applicable law.
Under such circumstances, the Issuer may determine to make alternative
arrangements for book-entry settlement for the Trust Preferred Securities, make
available one or more separate global certificates evidencing Trust Preferred
Securities to any Participant having Trust Preferred Securities credited to its
DTC account, or issue definitive Trust Preferred Securities to the beneficial
holders thereof, and in any such case, DTC agrees to cooperate fully with the
Issuer and the Transfer Agent and Registrar, and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and ▇▇▇▇▇▇▇▇▇.
▇▇. In the event that the Issuer determines that beneficial owners
of Trust Preferred Securities shall be able to obtain definitive Trust Preferred
Securities, the Issuer or the Transfer Agent and Registrar shall notify DTC of
the availability of certificates. In such event, the Issuer or the Transfer
Agent and Registrar shall issue, transfer and exchange certificates in
appropriate amounts, as required by DTC and others, and DTC agrees to cooperate
fully with the Issuer and the Transfer Agent and Registrar and to return the
Global Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and ▇▇▇▇▇▇▇▇▇.
▇▇. This letter may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Nothing
herein shall be deemed to require the Transfer Agent and Registrar to advance
funds on behalf of TECO Capital Trust __.
Very truly yours,
TECO CAPITAL TRUST __
(As Issuer)
By: TECO FUNDING COMPANY __, LLC,
(As Depositor)
By: ___________________________________
Name:
Title:
4
55
Property Trustee
[ ]
(As Registrar)
By: ___________________________________
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: _____________________________
Authorized Officer
5
56
EXHIBIT C
If the Trust Preferred Security is to be a Global Certificate Insert:
THIS TRUST PREFERRED SECURITY IS A GLOBAL CERTIFICATE WITHIN THE
MEANING OF TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") OR A NOMINEE OF THE
DEPOSITORY. THIS TRUST PREFERRED SECURITY IS EXCHANGEABLE FOR TRUST PREFERRED
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND
NO TRANSFER OF THIS TRUST PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS
TRUST PREFERRED SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS TRUST PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK) TO
TECO CAPITAL TRUST __ OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY TRUST PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
Certificate Number: ___ Number Of Trust Preferred Securities
CUSIP No. __________
Certificate Evidencing Trust Preferred Securities
of
TECO CAPITAL TRUST __
____% TRUST PREFERRED SECURITIES
(Liquidation Amount $___ Per Trust Preferred Security)
TECO Capital Trust __, a statutory business trust created under the
laws of the State of Delaware (the "TRUST"), hereby certifies that Cede & Co.
(the "HOLDER") is the registered owner of [_________] Trust Preferred Securities
of the Trust representing an undivided beneficial ownership interest in the
assets of the Trust and designated the ___% Trust Preferred Securities (the
"TRUST PREFERRED SECURITIES"). The Trust Preferred Securities are transferable
on the books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in Section 5.4 of the Trust
57
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Trust Preferred
Securities are set forth in, and this certificate and the Trust 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 ________, 20__ as the same may be amended from time to time
(the "TRUST AGREEMENT") including the designation of the terms of Trust
Preferred Securities as set forth therein. The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
In Witness Whereof, the Depositor of the Trust (or its appointee)
has executed this certificate this _____ day of __________, __________.
TECO CAPITAL TRUST __
By: [TECO FUNDING COMPANY __, LLC
or its appointee]
By: ___________________________________
Name:
Title:
2
58
ASSIGNMENT
For Value Received, the undersigned assigns and transfers this Trust
Preferred Security to:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Insert assignee's social security
or tax identification number)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
agent to transfer this Trust Preferred Securities Certificate on the books of
the Trust. The agent may substitute another to act for him or her.
Date: _____________________________
Signature: ___________________________________________________
(Sign exactly as your name appears on the other side
of this Trust Preferred Securities Certificate)
______________________________________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.