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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 30, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C>
SEMCO CAPITAL TRUST I
SEMCO CAPITAL TRUST II
SEMCO ENERGY, INC. SEMCO CAPITAL TRUST III
(Exact name of each registrant as specified in its
(Exact name of registrant as specified in its charter) certificate of trust)
MICHIGAN DELAWARE
(State of Incorporation) (State of Organization)
38-2144267 PENDING
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
</TABLE>
405 WATER STREET
PORT HURON, MICHIGAN 48060
(810) 987-2200
(Address, including zip code and telephone number, including area code, of
registrants' principal executive offices)
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SEBASTIAN COPPOLA
SENIOR VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
SEMCO ENERGY, INC.
405 WATER STREET
PORT HURON, MICHIGAN 48060
(810) 987-2200
(Name, address including zip code, and telephone number, including area code of
agent for service)
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Copies to:
<TABLE>
<S> <C>
JEFFREY S. RUPRICH, ESQ. STEVEN R. LOESHELLE, ESQ.
DICKINSON WRIGHT PLLC DEWEY BALLANTINE LLP
500 WOODWARD, SUITE 4000 1301 AVENUE OF THE AMERICAS
DETROIT, MICHIGAN 48226 NEW YORK, NEW YORK 10019
(313) 223-3500 (212) 259-8000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.: [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
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AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(2)(4) OFFERING PRICE(2)(4)
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<S> <C> <C> <C>
Senior Debt Securities and Subordinated Debt
Securities of SEMCO Energy, Inc. ....................
Preferred Stock, $1.00 par value, of SEMCO Energy,
Inc..................................................
Common Stock, $1.00 par value, of SEMCO Energy,
Inc..................................................
Stock Purchase Contracts(5)............................
Stock Purchase Units(5)................................
Trust Preferred Securities of SEMCO Capital Trust
I....................................................
Trust Preferred Securities of SEMCO Capital Trust
II...................................................
Trust Preferred Securities of SEMCO Capital Trust
III..................................................
Guarantees of Trust Preferred Securities of SEMCO
Capital Trust I, SEMCO Capital Trust II and SEMCO
Capital Trust III(6)...................................
Total.......................................... $500,000,000(3) 100% $500,000,000
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<CAPTION>
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AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED REGISTRATION FEE(3)
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<S> <C>
Senior Debt Securities and Subordinated Debt
Securities of SEMCO Energy, Inc. ....................
Preferred Stock, $1.00 par value, of SEMCO Energy,
Inc..................................................
Common Stock, $1.00 par value, of SEMCO Energy,
Inc..................................................
Stock Purchase Contracts(5)............................
Stock Purchase Units(5)................................
Trust Preferred Securities of SEMCO Capital Trust
I....................................................
Trust Preferred Securities of SEMCO Capital Trust
II...................................................
Trust Preferred Securities of SEMCO Capital Trust
III..................................................
Guarantees of Trust Preferred Securities of SEMCO
Capital Trust I, SEMCO Capital Trust II and SEMCO
Capital Trust III(6)...................................
Total.......................................... $132,000
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</TABLE>
(1) Such indeterminate number or amount of Senior Debt Securities, Subordinated
Debt Securities, Preferred Stock and Common Stock of SEMCO Energy, Inc.
("SEMCO"), Trust Preferred Securities (the "Trust Preferred Securities") of
SEMCO Capital Trust I, SEMCO Capital Trust II and SEMCO Capital Trust III
(collectively, the "SEMCO Trusts") and guarantees by SEMCO of the Trust
Preferred Securities as may from time to time be issued at indeterminate
prices (collectively, the "Offered Securities"). Subordinated Debentures may
be issued and sold to any of the SEMCO Trusts, in which event such
Subordinated Debentures may later be distributed to the holders of Trust
Preferred Securities of the applicable SEMCO Trust upon certain events
described in the applicable Trust Agreement of such SEMCO Trust.
(2) Such amount in U. S. Dollars or the equivalent thereof in foreign currencies
as shall result in an aggregate initial offering price for all securities of
$500,000,000. In addition, this Registration Statement includes such
presently indeterminate number or amount of Offered Securities as may be
issuable from time to time upon conversion or exchange of other Offered
Securities.
(3) An aggregate principal amount of $142,400,000 of unsold securities
registered by SEMCO on Registration Statement No. 333-58715, which was
declared effective on July 24, 1998 are being carried forward in this
Registration Statement pursuant to Rule 429 under the Securities Act of
1933. The registration fee of $42,008 associated with such securities was
previously paid. Accordingly, pursuant to Rule 429, the registration fee
consists of $89,992 paid herewith and the $42,008 previously paid.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 and exclusive of accrued interest and dividends, if
any.
(5) Contracts to purchase shares of common stock of SEMCO may be offered as
parts of units that also include the trust preferred securities being
registered hereunder or debt obligations of third parties, including U. S.
treasury securities, purchased with the proceeds of the sale of such units
and pledged to secure the obligations of holders to purchase such shares of
common stock.
(6) SEMCO is also registering under this Registration Statement all other
obligations that it may have with respect to Trust Preferred Securities
issued by any of the SEMCO Trusts. No separate consideration will be
received for any Guarantee or any other such obligations.
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
THE WITHIN PROSPECTUS RELATES TO SECURITIES REGISTERED HEREUNDER AND TO THE
$142,400,000 UNSOLD SECURITIES REGISTERED BY SEMCO AND SEMCO CAPITAL TRUST UNDER
REGISTRATION STATEMENT NO. 333-58715.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED.
PROSPECTUS
SUBJECT TO COMPLETION, NOVEMBER 30, 1999
SEMCO ENERGY, INC.
SEMCO CAPITAL TRUST I
SEMCO CAPITAL TRUST II
SEMCO CAPITAL TRUST III
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The following are types of securities that we may, from time to time, offer
and sell under this prospectus:
- Debt securities
- Preferred Stock
- Common Stock
- Stock purchase contracts
- Stock purchase units
In addition, we, in conjunction with our trusts, may, from time to time,
offer and sell:
- Trust preferred securities and related guarantees
We may offer these securities separately or as units which may include
other securities. We will describe in a prospectus supplement, which must
accompany this prospectus, the type and amount of securities we are offering and
selling, as well as the specific terms of the securities. Those terms may
include:
- Maturity
- Interest or dividend rate
- Sinking fund terms
- Currency of payments
- Redemption terms
- Listing on a securities exchange
- Amount payable at maturity
- Ranking
Our shares of Common Stock are traded on NASDAQ under the symbol SMGS.
The Securities and Exchange Commission and state securities regulators have
not approved or disapproved these securities, or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal
offense.
We may offer the securities in amounts, at prices and on terms determined
at the time of offering. We may sell the securities directly to you, through
agents we select, or through underwriters and dealers we select. If we use
agents, underwriters or dealers to sell the securities, we will name them and
describe their compensation in a prospectus supplement.
, 1999
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TABLE OF CONTENTS
<TABLE>
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Where You Can Find More Information......................... 2
Incorporation of Certain Documents by Reference............. 3
Cautionary Statement Regarding Forward-Looking
Information............................................... 3
SEMCO Energy................................................ 5
The Trusts.................................................. 10
Use of Proceeds............................................. 11
Accounting Treatment Relating to Trust Securities........... 11
Consolidated Ratios of Earnings to Fixed Charges............ 11
Description of Capital Stock................................ 12
Description of Debt Securities.............................. 16
Description of Trust Preferred Securities................... 28
Description of Trust Guarantees............................. 30
The Agreement as to Expenses and Liabilities................ 32
Additional Description of Subordinated Debentures to be
Issued to Trust........................................... 33
Effect of Obligations Under Subordinated Debentures and
Trust Preferred Securities Guarantees..................... 37
Description of Stock Purchase Contracts and Stock Purchase
Units..................................................... 38
Plan of Distribution........................................ 38
Legal Matters............................................... 40
Experts..................................................... 40
</TABLE>
WHERE YOU CAN FIND MORE INFORMATION
SEMCO files annual and quarterly reports, proxy statements and other
information with the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended. You may read and copy this information at the
following locations of the Commission:
<TABLE>
<S> <C> <C>
Judiciary Plaza, Room 10024 Seven World Trade Center Citicorp Center
450 Fifth Street, N.W. Suite 1300 500 West Madison St., Ste.
Washington, D.C. 20549 New York, New York 10048 1400
Chicago, Illinois 60661
</TABLE>
You can also obtain copies of this information by mail from the Public
Reference Room of the Commission, 450 Fifth Street, N.W., Room 10024, Washington
D.C. 20549, at prescribed rates. You may obtain information on the operation of
the Public Reference Room by calling the Commission at (800) SEC-0330.
The Commission also maintains an internet world wide web site that contains
reports, proxy statements and other information about issuers, like SEMCO, who
file electronically with the Commission. The address of that site is
http://www.sec.gov.
We and our trusts have filed jointly with the Commission a registration
statement on Form S-3 that registers the securities we or they are offering. The
registration statement, including the attached exhibits, contains additional
relevant information about SEMCO, the trusts and the securities offered. The
rules and regulations of the Commission allow us to omit certain information
included in the registration statement from this prospectus.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to incorporate by reference information into this
prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the Commission. The
information incorporated by reference is considered to be part of this
prospectus, except for any information that is superseded by information that is
included directly in this document.
This prospectus includes by reference the documents listed below that we
have previously filed with the Commission and that are not included in or
delivered with this document. They contain important information about us and
our financial condition.
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FILING PERIOD
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Annual Report on Form 10-K................... Year ended December 31, 1998
Quarterly Reports on Form 10-Q............... Quarters ended March 31, 1999, June 30, 1999
and September 30, 1999
Current Reports on Form 8-K.................. Filed March 23, 1999, April 23, 1999, July
16, 1999, November 12, 1999, and November 24,
1999.
</TABLE>
We incorporate by reference additional documents that we may subsequently
file with the Commission prior to termination of any offering of securities made
by this prospectus. These documents include periodic reports, such as Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form
8-K, as well as proxy statements. The information in this prospectus, in
documents incorporated into this prospectus, and in prospectus supplements may
be changed or superceded by information given at a later date in these
documents.
You can obtain any of the documents incorporated by reference in this
document from us without charge, excluding any exhibits to those documents
unless the exhibit is specifically incorporated by reference as an exhibit to
this prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address:
Edric R. Mason, Jr.
Director of Investor Relations
SEMCO Energy, Inc.
405 Water Street
Port Huron, Michigan 48060
(810) 989-4104
We have not authorized anyone to give any information or make any
representation about us that is different from, or in addition to, that
contained in this prospectus or in any of the materials that we have
incorporated by reference into this prospectus. Therefore, if anyone does give
you information of this nature, you should not rely on it. If you are in a
jurisdiction where offers to exchange or sell, or solicitations of offers to
exchange or purchase, the securities offered by this document or the
solicitation of proxies is unlawful, or if you are a person to whom it is
unlawful to direct these types of activities, then the offer presented in this
prospectus does not extend to you. The information contained in this prospectus
speaks only as of the date of this prospectus, unless the information
specifically indicates that another date applies.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION
This prospectus contains forward-looking statements within the meaning of
the Private Securities Litigation Reform Act of 1995 that are based on current
expectations, estimates and projections. Statements that are not historical
facts, including statements about our belief and expectations are
forward-looking statements. These statements are subject to potential risks and
uncertainties and, therefore, actual results may differ materially. We undertake
no obligation to update publicly any forward-looking
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statements whether as a result of new information, future events or otherwise.
Factors that may impact forward-looking statements include, but are not limited
to, the following: (i) the effects of weather and other natural phenomena; (ii)
the economic climate and growth in the geographical areas where we do business;
(iii) the capital intensive nature of our business; (iv) increased competition
within the energy industry as well as from alternative forms of energy; (v) the
timing and extent of changes in commodity prices for natural gas and propane;
(vi) the effects of changes in governmental and regulatory policies, including
income taxes, environmental compliance and authorized rates; (vii) our ability
to bid on and win construction, engineering and quality assurance contracts;
(viii) the impact of energy prices on the amount of projects and business
available to the engineering business; (ix) the nature, availability and
projected profitability of potential investments available to us; (x) our
ability to operate acquired businesses in accordance with our plans and (xi) our
ability to accomplish our financing objectives in a timely and cost-effective
manner, including our ability to accomplish our refinancing of the Enstar
Acquisition, in light of changing conditions in the capital markets and equity
markets.
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SEMCO ENERGY
SEMCO, together with its subsidiaries, is a diversified energy services and
infrastructure company with its principal offices at 405 Water Street, Port
Huron, Michigan 48060. SEMCO was founded in 1950 as Southeastern Michigan Gas
Company. We operate four business segments: gas distribution, engineering
services, pipeline construction services and propane, pipelines and storage.
GAS DISTRIBUTION
Our largest business segment is our gas distribution unit which distributes
and transports natural gas to approximately 250,000 customers within the State
of Michigan and approximately 102,000 customers in Alaska. Our Michigan gas
distribution business is operated through our subsidiary SEMCO Energy Gas
Company ("Gas Company"). On November 1, 1999, we acquired Enstar, the Alaskan
gas transmission and distribution business of Ocean Energy, Inc. See "Enstar --
Enstar Acquisition". Enstar's gas distribution business is now a division of
SEMCO. The Gas Company will also become a division of SEMCO. The Gas Company and
Enstar sold 32.2 Bcf and 23.0 Bcf of gas, respectively, and transported 23.8 Bcf
and 20.8 Bcf of gas to end users, respectively, for the year ended December 31,
1998.
SEMCO ENERGY GAS COMPANY
Customer Base
The Gas Company is a local distribution company that serves 250,000
customers through approximately 5,000 miles of gas main across the State of
Michigan. Our largest concentration of customers, approximately 100,000, is
located in Southeastern Michigan. We also serve other customers in the following
Michigan communities: Battle Creek, Albion, Holland, Three Rivers, Niles,
Marquette and Houghton. Our customer base is diverse and includes residential,
commercial and industrial customers. Our largest customers include power plants,
food production facilities, paper processing plants, furniture manufacturers and
a variety of other industries. The Gas Company added more than 7,000 new
customers in 1998 and has achieved a customer growth rate of approximately 3%
during the three years ended in 1998, surpassing the industry average of 1.3%.
This growth was due largely to our pursuit of customer attachments to our
existing gas lines. This strategy allows us to increase revenues with less
additional investment in capital assets. The number of gas customers of the Gas
Company for each of the four preceding years is set forth below:
<TABLE>
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AVERAGE NUMBER
CALENDAR YEAR OF CUSTOMERS
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<S> <C>
1998.................................................. 244,175
1997.................................................. 236,794
1996.................................................. 228,953
1995.................................................. 222,448
</TABLE>
Regulatory Matters
The Gas Company's operations are regulated by various regulatory bodies
including the Michigan Public Service Commission ("MPSC"). The MPSC authorizes
the rates charged to all of the Gas Company's customers other than those
customers located in Battle Creek, Michigan which are subject to the
jurisdiction of the City Commission of Battle Creek. In 1998 we established a
program authorized by the MPSC which allows the Gas Company the opportunity to
earn a profit on the sale of the gas commodity in addition to the gas delivery
charge while also reducing purchased gas costs for customers. Specifically, in
September 1998, the Gas Company received authority from the MPSC to: (1)
implement an experimental residential gas customer choice program; (2) suspend
its gas cost recovery ("GCR") clause; (3) roll into its base rates and freeze
for three years a gas charge of $3.24 per thousand cubic feet ("Mcf"); (4)
freeze distribution rate adjustments for the same three year period, with
exceptions; (5) suspend the income sharing mechanism adopted in October 1997 and
adopt a new income sharing
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mechanism for use during the 1999, 2000 and 2001 calendar years; and (6)
establish gas service performance criteria. The new rates took effect in April
1999 and generally extend through March 2002.
Pursuant to such authority, under the experimental residential gas
customer-choice program and a similar program in Battle Creek up to 25,000
residential customers, 10% of the Gas Company's residential customer base, will
be allowed to choose their own gas supplier by March 2001. The Gas Company
delivers the customer-choice gas under a tariff similar to its existing tariff
used to provide such service to its commercial and industrial customers. The
program has not, and is not expected to, significantly affect the Gas Company's
income because the Gas Company's approved rates for transportation service are
designed to recover all costs other than the cost of gas and provide a return in
approximately the same amounts as such costs are recovered from residential
customers for whom the Gas Company is the supplier.
Several aspects of the MPSC order are interrelated. The $3.24 GCR rate
represents a reduction of approximately $.33 per Mcf from the Gas Company's
rates prior to April, 1999. The suspension of the GCR clause means that the Gas
Company will not be able to recover any amounts by which its gas costs exceed a
weighted average cost of gas in excess of the $3.24 GCR for the three year
period. If the Gas Company is able to reduce its gas costs below the $3.24
level, it will retain all or a portion of the savings depending on the return on
equity achieved under the income sharing mechanism described below. The Gas
Company was able to offer this GCR suspension mainly as a result of agreements
reached with TransCanada Gas Services Inc. ("TransCanada"), under which
TransCanada will provide the Gas Company's natural gas requirements and manage
the Gas Company's natural gas supply and the supply aspects of transportation
and storage operations for the three year period. See "SEMCO Energy Gas
Company -- Supply Contract".
There are two exceptions to the three year distribution rate freeze: first,
the income sharing mechanism described in the following paragraph, and second,
rate revisions arising in response to unanticipated legislative or accounting
actions. The MPSC order is applicable only in the geographic areas subject to
the regulatory jurisdiction of the MPSC, and, therefore, does not govern rates
regulated by the City of Battle Creek. However, the Gas Company is voluntarily
reducing its Battle Creek GCR rate to the $3.24 level to correspond with its GCR
under the MPSC order.
The new income sharing mechanism substantially matches mechanisms approved
by the MPSC for two other major natural gas utilities in Michigan and provides
for a higher threshold than was previously applicable (i.e., 12.75% return on
equity) before triggering profit sharing with customers. Under the mechanism, if
the Gas Company's return on equity for its natural gas utility business exceeds
12.75%, amounts equal to 50% of the excess return between 12.76% and 16.75%,
plus amounts equal to 75% of the excess over 16.75% would be credited to
customers, i.e., would be reflected prospectively in reduced rates. Four safety
and reliability performance measures need to be met in order not to reduce the
return on equity threshold used in the income sharing mechanism.
Supply Contract
The Gas Company has a gas supply and storage agreement with TransCanada.
Under this Agreement, TransCanada provides the Gas Company's natural gas
requirements and manages the Gas Company's natural gas supply and the supply
aspects of transportation and storage operations for a three year period that
began April 1, 1999. TransCanada is currently managing approximately 118 million
cubic feet of gas transportation daily for the Gas Company on four pipelines
feeding into our distribution system and approximately 15 billion cubic feet of
underground gas storage.
ENSTAR
Enstar Acquisition
SEMCO entered into a purchase agreement on July 15, 1999 to acquire the
assets and certain liabilities of Enstar Natural Gas Company ("ENG") and the
outstanding stock of Alaska Pipeline
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Company ("APC") (APC together with ENG known as "Enstar") from Ocean Energy, Inc
("Ocean"). ENG was a division of Ocean and APC a wholly owned subsidiary of
Ocean. On October 21, 1999, we received an order from the Regulatory Commission
of Alaska ("RCA") approving the joint application of SEMCO and Ocean for the
transfer of the Certificate of Public Convenience and Necessity held by ENG and
for a transfer of controlling interest in APC. The RCA's order contained certain
conditions, including the obligation to file by July 1, 2000 certain revenue
requirement and cost of service information and the prohibition from encumbering
Enstar's assets for financing of non-utility business activities. On November 1,
1999, we completed our acquisition of Enstar (the "Enstar Acquisition") for
approximately $290,000,000 in cash which included the purchase of approximately
$58,700,000 of Enstar debt, all of which was owed to Ocean. The Enstar
Acquisition will be accounted for using the purchase method of accounting. ENG
is now a division of SEMCO. The success of the Enstar Acquisition is, in part,
dependent on the synergies obtained in combining Enstar with our current
operations, our ability to operate Enstar in accordance with our plans and our
ability to timely repay our short term financing incurred in connection with the
Enstar Acquisition.
Enstar's Customer Base
Enstar has two types of customers: gas sales and transportation. Gas sales
customers are primarily residential and commercial. Enstar provides
transportation service to power plant sites, a liquified natural gas plant, an
ammonia plant, and hundreds of commercial locations on behalf of gas producers
and gas marketers. The number of gas customers of Enstar for each of the four
preceding years is set forth below:
<TABLE>
<CAPTION>
CALENDAR YEAR AVERAGE NUMBER OF CUSTOMERS
- ------------- ---------------------------
<S> <C>
1998......................................... 98,114
1997......................................... 95,269
1996......................................... 92,847
1995......................................... 90,894
</TABLE>
Enstar Natural Gas Company
ENG is a natural gas local distribution company that serves Anchorage,
Alaska and its surrounding communities. ENG distributes natural gas through
approximately 2,265 miles of gas main to approximately 102,000 residential,
commercial, industrial and electric power generation customers in and around
Anchorage, Alaska, including one municipal utility, an electric co-op and two
military bases. Additional communities served in Alaska include Big Lake, Bird
Creek, Butte, Chugiak, Eagle River, Eklutna, Girdwood, Houston, Indian, Kenai,
Knik, Nikiski, Palmer, Peters Creek, Portage, Sterling, Soldotna, Wasilla and
Whittier. ENG is currently serving more than 90% of Anchorage's residences with
natural gas, with the remaining being served by electricity and other energy
sources. ENG is the sole distributor of natural gas to the greater Anchorage
metropolitan area, and its service area encompasses approximately 50% of the
population of the State of Alaska. During 1998, ENG added approximately 3,000
new customers, representing a 3% increase over 1997.
Alaska Pipeline Company
APC engages in the intrastate transmission of natural gas in Southcentral
Alaska. APC owns and operates the only natural gas transmission lines in its
service area that are operated for utility purposes. ENG is APC's only customer.
The pipeline transmission system, which delivers natural gas from producing
fields in Southcentral Alaska to ENG's Anchorage base gas distribution system,
is comprised of approximately 394 miles of pipeline. The system's present design
delivery capacity is approximately 410 million cubic feet per day.
Regulatory Matters
The RCA has jurisdiction as to rates and charges for gas sales,
construction of new facilities, extensions and abandonments of service and
certain other matters. Rates are generally designed to meet
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<PAGE> 9
the recovery of the cost of providing service, including purchased gas costs,
and return on investment in plant. As Enstar operations are wholly intrastate,
Enstar is not subject to regulation by the Federal Energy Regulatory Commission.
As a regulated company under RCA jurisdiction, Enstar may apply to the RCA for
rate increases if higher costs or other factors warrant such action. It is
Enstar's experience that such rates typically go into effect, subject to refund
and pending final RCA determination, 45 days after the rates have been filed
unless such rates are suspended. The RCA normally suspends general rate
increases filed to recover costs, other than purchased gas costs, for at least a
six month period. All gas sales rates are adjusted annually to reflect changes
in Enstar's cost of purchased gas based on estimated costs for the upcoming
12-month period. The gas cost adjustment ("GCA") may be adjusted quarterly if it
is determined that there are significant variances from the estimates used in
the annual determination. Any purchased gas cost difference between actual costs
incurred and the RCA's approved rate adjustment is deferred and included with
applicable carrying charges in the next GCA.
Gas cost increases that may result from new gas supply contracts may be
recovered only upon approval of the RCA for inclusion in the GCA tariff or by
application for a general rate increase. The RCA has given overall approval of
and has approved recovery of gas costs attributable to the Beluga Contract and
to the Marathon Contract, discussed below.
Supply Contracts
Enstar currently purchases all of its natural gas under the following
long-term contracts. Enstar has an RCA approved gas purchase contract with
Marathon Oil Company (the "Marathon Contract"), that is a "requirements"
contract with no specific daily delivery or annual take or pay quantities.
Enstar has agreed to purchase and Marathon has agreed to deliver all of Enstar's
gas requirements in excess of those provided for in other existing gas supply
contracts, subject to certain exceptions until the commitments have been
exhausted and without limit as to time. However, Marathon's delivery obligation
is subject to certain specified limitations after 2001.
Enstar also has RCA approved gas purchase contracts with the municipality
of Anchorage, Chevron and ARCO (collectively the "Beluga Contract") which
provides for the delivery of up to 220 Bcf of gas through the year 2009 from the
Beluga field. Enstar is actively pursuing additional gas supply and negotiating
with several potential providers and believes that adequate supplies of gas will
be available to it.
ENGINEERING SERVICES
The pipeline/underground infrastructure engineering services industry is a
large, highly fragmented industry with a small group of major companies and a
significant number of smaller regional and local companies. We entered this
business in December, 1997 with the acquisition of Maverick Pipeline Services,
Inc., and added to the business with the acquisitions of Oilfield Materials
Consultants, Inc. in November, 1998, Drafting Services, Inc. in September, 1999
and Pinpoint Locators, Inc. in October, 1999. Drafting Services specializes in
survey/drafting services to interstate pipeline companies and will be operated
as a division of Maverick Pipeline Services. Pinpoint Locators is an engineering
field services company that performs conventional and global positioning system
("GPS") surveys of both interstate pipelines and fiber optic communications
routes. Pinpoint will operate as a division of Maverick Pipeline Services. Our
array of service offerings in this segment include engineering design, project
management, field surveying, inspection, testing, pipeline-mill quality
assurance and full engineering and construction turnkey service. Our engineering
services segment has offices in New Jersey, Michigan, Louisiana and Texas. Our
focus in this segment is on: marketing our services to new customers, not only
in the gas industry but also telecommunications and other industries; expanding
our geographic scope in North America and select foreign countries; and
aggressively pursuing full turnkey projects. Our strategic objective is to build
a sizable underground facilities engineering business that provides a wide array
of services to utilities and other companies installing underground pipe, cable
and facilities in North America.
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PIPELINE CONSTRUCTION SERVICES
The natural gas construction service industry is an $8.5 billion market
with a highly fragmented group of companies focused on regional or local markets
catering to utilities and other companies requiring underground pipeline and
cable facilities. Our Pipeline Construction Services segment provides primary
pipeline construction services in Georgia, Iowa, Kansas, Michigan, Missouri,
Nebraska, Tennessee, Texas and Virginia. This segment is comprised of the
following companies which we have acquired since 1997: Subsurface Construction
Co., King Energy & Construction Co., K & B Construction, Inc., Iowa Pipeline
Associates, Inc., Flint Construction Company and Long's Underground
Technologies, Inc. Subsurface Construction provides underground pipeline
construction services in Michigan. King Energy provides underground pipeline
construction services in Tennessee, Georgia and Virgina. K&B Construction
provides underground pipeline construction services in Kansas and Missouri. Iowa
Pipeline Associates builds underground natural pipelines and local gas
distribution networks for customers in Iowa, Kansas, Missouri and Nebraska.
Flint Construction Company provides specialized construction services for
natural gas distribution companies and interstate pipeline companies in the
southeastern areas of the United States. Long's Underground Technologies
provides construction services to natural gas distribution companies and to
telecommunications companies in Texas. We believe there are significant
opportunities for growth in the pipeline construction industry, as customer
preference appears to be shifting from smaller construction companies to much
larger contractors. We plan to expand our construction services' market share
significantly by acquiring established companies that have a strong customer
base.
PROPANE, PIPELINES AND STORAGE
Our propane, pipelines and storage segment supplies approximately 5 million
gallons of propane annually to over 7,500 retail customers in Michigan's Upper
Peninsula and northeast Wisconsin, and operates natural gas transmission,
gathering and storage facilities in Michigan. We entered the propane
distribution business with our acquisition of Hot Flame Gas, Inc. in March,
1998. Hot Flame is currently the largest provider of propane in the Upper
Peninsula of Michigan.
We believe that the gas pipelines and storage operations could experience
opportunities for growth with the increased deregulation of gas markets. As gas
markets continue to expand, we believe that the quantity of gas within the Great
Lakes Region will increase, therefore creating additional pipeline and storage
opportunities.
BUSINESS STRATEGY
SEMCO's business strategy is to expand significantly both its gas
distribution and diversified businesses through normal market growth and
acquisitions that meet pre-determined financial criteria and provide incremental
revenue, cost synergies, additional business opportunities and ultimately higher
shareholder value. Management has experience in operating non-contiguous gas
distribution properties based on operating its Michigan properties. As such, we
will continue to evaluate acquisition opportunities throughout the United
States. With respect to the diversified business segments, SEMCO's vision is to
become one of the largest engineering and construction companies in the United
States in the pipeline/underground infrastructure business. The key to SEMCO's
business strategy is the acquisition of a number of companies which provide
engineering and construction services to companies in the natural gas,
telecommunications, water and electric industries. The Company desires to
consolidate these acquisitions to achieve the synergies and lower administrative
and financing costs usually present in a large firm, while maintaining the
entrepreneurial spirit of a small company. A cornerstone of SEMCO's strategy is
to build complementary businesses capable of providing a large menu of
engineering and construction services in the pipeline/underground infrastructure
industry which can be packaged in full turnkey services for higher profit
potential. Other major benefits of SEMCO's consolidation strategy is the
development of greater depth and overall strength of management, more
sophisticated systems, enhanced purchasing capabilities, and better utilization
of equipment and resources. These benefits, plus our ability to provide these
turnkey construction and engineering services to new and existing customers,
should result in enhanced profitability to SEMCO. We anticipate that this group
of diversified businesses could contribute
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an increasing share of SEMCO's consolidated net income. In addition to this
increased contribution, such engineering and construction businesses provide a
counter-seasonal earnings pattern to our traditional gas distribution business.
These engineering and construction businesses tend to have higher earnings in
the spring through fall months. The gas distribution business has higher
earnings in the late fall and winter that is associated with colder weather.
THE TRUSTS
We created three Delaware business trusts pursuant to three trust
agreements executed by us as sponsor for each trust, appointed trustees for each
trust and filed a certificate of trust for each trust with the Delaware
Secretary of State. The trusts are named SEMCO Capital Trust I, SEMCO Capital
Trust II and SEMCO Capital Trust III, which we refer to herein as, collectively,
the "trusts" and, individually, each a "trust." The amended and restated trust
agreement for each trust, (as so amended and restated, the "trust agreement")
which is filed as an exhibit to the registration statement of which this
prospectus forms a part, states the terms and conditions for each trust to issue
and sell its trust preferred securities and trust common securities, which we
refer to herein, together with the trust preferred securities, as the trust
securities.
Each trust will exist solely to:
- issue and sell its trust securities;
- use the proceeds from the sale of its trust securities to purchase and
hold a series of our debt securities;
- maintain its status as a grantor trust for federal income tax purposes;
and
- engage in other activities that are necessary or incidental to these
purposes.
We will purchase all of the trust common securities of each trust. The
trust common securities will represent an aggregate liquidation amount equal to
at least 3% of each trust's total capitalization. The trust common securities
will have terms substantially identical to, and will rank equal in priority of
payment with, the trust preferred securities. However, if we default on the
subordinated debt securities, then cash distributions and liquidation,
redemption and other amounts payable on the trust common securities will be
subordinate to the trust preferred securities in priority of payment.
We will guarantee the trust preferred securities as described later in this
prospectus.
The trust's business and affairs will be conducted by the trustees (the
"Trustees") appointed by us, as holder of the trust common securities. The
duties and obligations of the trustees will be governed by the trust agreement.
Pursuant to each trust agreement, the number of trustees will initially be four.
Two of the trustees (the "Administrative Trustees") will be persons who are our
employees or officers of or affiliated with us. The third Trustee will be a
corporation which maintains a principal place of business in the State of
Delaware that will serve for the sole purpose of complying with certain Delaware
laws (the "Delaware Trustee"). The fourth trustee will be a financial
institution unaffiliated with us which will serve as property trustee under each
trust agreement and as indenture trustee for purposes of the Trust Indenture Act
(the "Property Trustee"). Bank One Delaware, Inc. will act as the Delaware
Trustee and Bank One Trust Company NA as the Property Trustee, in each case
until removed or replaced by the holder of the trust common securities. The
Property Trustee will also act as indenture trustee under the indenture and
guarantee trustee under the Trust Guarantee (the "Guarantee Trustee"). See
"Description of the Trust Guarantee." We, as the holder of all the trust common
securities, will have the right to appoint, remove or replace any trustee and to
increase the number of trustees, provided that the number of trustees will be at
least three, two of which will be the Administrative Trustees.
The Property Trustee will hold title to the subordinated debt securities
for the benefit of the holders of the trust securities, and will have the power
to exercise all rights, powers and privileges as the holder of the subordinated
debt securities under the indenture pursuant to which the subordinated debt
securities are
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issued. In addition, the Property Trustee will maintain exclusive control of a
segregated non-interest bearing bank account to hold all payments made in
respect of the subordinated debt securities for the benefit of the holders of
the trust securities. The Property Trustee will make payments of distributions
and payments on liquidation, redemption and otherwise to the holders of the
trust securities out of funds from the property account. The Guarantee Trustee
will hold the guarantee by us of the trust securities for the benefit of the
holders of the trust preferred securities.
In addition, unless the Property Trustee maintains a principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law, another trustee of each trust, the Delaware trustee, will either
be a natural person who is a resident of the State of Delaware or an entity
which has its principal place of business or resides in the State of Delaware.
We have appointed Bank One Delaware, Inc., as Delaware trustee. We will pay all
fees and expenses related to each trust and each offering of the related trust
preferred securities and will pay all ongoing costs and expenses of each trust,
except such trust's obligations under the related trust securities.
The rights of the holders of the trust preferred securities, including
economic rights, rights to information and voting rights, are set forth in each
trust's trust agreement and the Delaware Business Trust Act, as amended, and the
Trust Indenture Act. The principal place of business of the trusts is c/o SEMCO
Energy, Inc., 405 Water Street, Port Huron, Michigan 48060, and their telephone
number is 810-987-2200.
USE OF PROCEEDS
Except as may otherwise be described in the prospectus supplement relating
to an offering of securities, the net proceeds from the sale of the securities
will be used to finance acquisitions, repay our short-term borrowings and for
other general corporate purposes. A significant portion of the proceeds will be
used to repay the debt incurred for the Enstar Acquisition under a short term
credit facility that matures on October 30, 2000. Interest rates under that
facility vary. Prior to such uses, the net proceeds from the sale of securities
may be invested in certificates of deposit or other highly liquid investments
with short-term maturities. Any specific allocation of the net proceeds of an
offering of securities to a specific purpose will be determined at the time of
such offering and will be described in the related prospectus supplement.
ACCOUNTING TREATMENT RELATING TO TRUST SECURITIES
The financial statements of each trust that has issued trust securities
will be consolidated with our financial statements, with the trust preferred
securities of each trust shown on our consolidated financial statements as our
obligated mandatory redemption preferred securities of a consolidated trust. Our
financial statements will include a footnote that discloses, among other things,
that the sole asset of each trust included therein consists of our subordinated
deferrable interest debentures and will specify the designation, principal
amount, interest rate and maturity date of such subordinated deferrable interest
debentures.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratios of earnings to fixed
charges for SEMCO and its subsidiaries for the years and period indicated:
<TABLE>
<CAPTION>
12 MONTHS ENDING YEARS ENDED DECEMBER 31,
SEPTEMBER 30, ------------------------------------
RATIO OF EARNINGS TO: 1999 1998 1997 1996 1995 1994
- --------------------- ---------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Fixed Charges(1)......................... 2.47 2.17 2.42(3) (2) 2.21 2.17
</TABLE>
- ---------------
(1) In January 1998, SEMCO, through a subsidiary of SEMCO Energy Ventures, SEMCO
Arkansas Pipeline Company, sold is 32.07% partnership interest in NOARK
Pipeline System L.P. ("NOARK"). NOARK had been generating losses since it
was placed in service in 1992. Earnings
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reflect a share of NOARK's operating losses and fixed charges include a
share of NOARK's interest expense equal to SEMCO's percentage interest in
NOARK.
For purposes of calculating the ratios, "earnings" represent the sum of (a)
pretax income from continuing operations (excluding extraordinary charges
from the early retirement of debt in 1994 and 1998) and (b) fixed charges.
"Fixed charges" represent the sum of (i) interest incurred by SEMCO and its
subsidiaries plus their share of interest on debt to outsiders incurred by
less-than-fifty-percent-owned persons, (ii) amortization of debt expense and
(iii) the preferred stock dividend requirements of SEMCO's subsidiaries,
increased to an amount representing the pretax earnings required to cover
such dividend requirement.
(2) For the year ended December 31, 1996, fixed charges exceeded earnings by
$20.0 million. Earnings as defined include a $32.3 million non-cash pretax
write-down of the NOARK (1) investment. Excluding the NOARK write-down the
ratios of earnings to fixed charges would have been 1.84.
(3) Restated to account for a 1998 acquisition as a pooling of interests. Years
prior to 1996 were not restated for the pooling of interests as the effects
were not material.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 40,000,000 shares of common stock,
$1.00 par value ("common stock"), 500,000 shares of cumulative preferred stock,
$1.00 par value ("preferred stock"), and 3,000,000 shares of preference stock,
$1.00 par value ("preference stock"). At November 22, 1999, there were
outstanding 17,903,977 shares of common stock and no shares of preferred stock.
2,000,000 shares of the preference stock are reserved for issuance pursuant to a
Shareholder Rights Plan described below; no preference stock is outstanding.
The following description of our common stock and preferred stock is not
complete. You should look at our restated articles of incorporation which are
filed as an exhibit to the Registration Statement for a complete description.
The following summary is subject in all respects to the provisions of our
restated articles of incorporation and does not relate to or give effect to the
provisions of the statutory or common law of the State of Michigan. The summary
given below is qualified in its entirety by reference to our restated articles
of incorporation and the laws of the State of Michigan.
COMMON STOCK
Dividend Rights. The holders of common stock are entitled to dividends
when, as and if, declared by the Board of Directors out of our surplus after
full cumulative dividends on the preferred stock and preference stock, if any,
shall have been paid or set apart for payment and any sinking fund obligations
with respect to the preferred stock and preference stock, if any, have been
satisfied.
We have long-term debt agreements which contain restrictive financial
covenants including, among others, limits on the payment of dividends beyond
certain levels. We are currently in compliance with all of the covenants in
these agreements. With respect to the payment of dividends or any other
distributions in respect of our capital stock, such agreements provide that we
may not declare and pay any dividends (except dividends or other distributions
payable in shares of our capital stock), redeem or retire our capital stock (or
any warrants, rights, or options to purchase or acquire our capital stock), or
make other distributions with respect to our capital stock (such declarations or
payments of dividends, purchases, redemptions or retirements of capital stock
and warrants, rights or options and all such other payments or distributions
being collectively referred to as "Restricted Payments") if, after giving effect
thereto, (i) any event of default under such agreements exists; (ii) the
aggregate amount of Restrictive Payments since January 1, 1994 would exceed our
consolidated net income for the same period plus an adjustment factor of
$14,171,000; or (iii) would cause our consolidated net worth to be less than
$80,000,000.
After December 31, 1999, the adjustment factor of $14,171,000 is reduced
each quarter by $625,000 until the adjustment factor equals $11,000,000. Under
the most restrictive terms, as of September 30, 1999, $7,036,000 is available
for dividends.
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Voting Rights. The holders of Common Stock are entitled to one vote for
each share on all matters voted upon by our shareholders and, subject to any
voting rights of the holders of the preferred stock and preference stock
described below, the holders of such shares currently possess all voting power.
Our Articles of Incorporation provide for cumulative voting for the election of
our directors.
Preemptive Rights. No holder of common stock has any preemptive right to
subscribe to any additional securities which we may issue.
Liquidation Rights. Subject to the preferential rights of holders of the
preferred stock and preference stock, upon our liquidation the holders of the
common stock are entitled to share on a pro rata basis in our net assets which
remain after satisfaction of all liabilities.
PREFERRED STOCK
The Board of Directors is authorized, without further action by
shareholders, to issue preferred stock, in one or more series, from time to
time, with such rights and preferences as may be provided in a resolution
adopted by the Board of Directors. The authority of the Board includes, but is
not limited to, the determination or fixing of the following with respect to
shares of such class or any series thereof: (i) the rate of dividends and the
extent of further participation in dividend distribution, if any; (ii) the price
at and the terms and conditions on which the shares are redeemable; (iii) the
amount payable upon shares in event of voluntary or involuntary liquidation;
(iv) sinking fund provisions for the redemption or purchase of shares; and (v)
the terms and conditions on which shares are convertible.
The terms of each series of preferred stock will be described in any
prospectus supplement related to such series of preferred stock and may include
the following:
(1) the title and stated value of such preferred stock;
(2) the number of shares of such preferred stock offered and the offering
price and liquidation preference per share of such preferred stock;
(3) the dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to such preferred stock;
(4) the date from which dividends on such preferred stock shall accumulate,
if applicable;
(5) the provision for a sinking fund, if any, for such preferred stock;
(6) the provision for redemption, if applicable, of such preferred stock;
(7) any listing of such preferred stock on any securities exchange;
(8) a discussion of federal tax considerations applicable to such preferred
stock;
(9) any voting rights of holders of such preferred stock;
(10) any other specific terms, preferences, rights, limitations or
restrictions of such preferred stock;
(11) the relative ranking and preference of such preferred stock as to
dividend rights and rights upon liquidation, dissolution or winding up of our
affairs;
(12) any limitations on issuance of any series of preferred stock ranking
senior to or on a parity with such series of preferred stock as to dividend
rights and rights upon liquidation, dissolution or winding up of our affairs;
and
(13) the terms and condition. if applicable, upon which such preferred
stock will be convertible into or participate in dividends, if any, paid on the
common stock, including the conversion price (or manner of calculation thereof).
In the event of our liquidation or dissolution, the holders of preferred
stock are entitled to receive a fixed amount for each series before any
distribution is made to the holders of common stock. As long as
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any preferred stock remains outstanding, we may not purchase any shares of our
common stock or redeem any preference stock.
As long as any preferred stock remains outstanding, we may not without the
consent of the holders of at least two-thirds of the outstanding preferred stock
authorize any class of stock having a priority or preference over or ranking on
a parity with the preferred stock as to dividends or distribution of assets.
If at any time we fail to declare and pay or set apart for payment in full
eight quarterly dividends (whether or not consecutive) on all of the outstanding
preferred stock, then the holders of the outstanding preferred stock shall have
the right, voting as a single class irrespective of series, to elect such number
of our directors as shall constitute one less than the smallest number of
directors necessary to constitute a majority of the full Board of Directors, and
such right shall continue (and may be exercised at any annual or other meeting
of shareholders for the election of directors) until we shall have paid or
declared and set apart for payment all accrued dividends on the preferred stock
for all past quarterly dividend periods.
At November 22, 1999, no shares of preferred stock were outstanding.
PREFERENCE STOCK
The Board of Directors has the authority to divide the 3,000,000 shares of
preference stock into series and, within the limitations set forth in the laws
of the State of Michigan and in the Articles of Incorporation, to fix and
determine the relative rights and preferences of the shares of any series so
established. The preference stock ranks junior to all series of preferred stock
as to the payment of dividends and the distribution of assets, except to the
extent that a specific series of preferred stock provides otherwise.
SERIES A PREFERENCE STOCK
In January, 1997, the Board of Directors created a series of preference
stock designated as Series A preference stock with the number of shares
constituting such series set at 2,000,000. No shares of preference stock are
outstanding.
If Series A preference stock was outstanding, dividends would accrue and be
cumulative in an amount per share per quarter equal to the greater of (i) $10.00
or (ii) the Adjustment Number (as defined below) times the per share amount of
all cash dividends, and the Adjustment Number times the per share amount
(payable in kind) of all non-cash dividends or other distributions (other than a
dividend payable in shares of common stock or a subdivision of the shares of
common stock), declared on the common stock since the preceding quarterly
dividend payment date, or, if later, since the issuance or such Series A
preference stock. Upon our liquidation or dissolution the holders of Series A
preference stock are entitled to receive $100 per share plus all accrued and
unpaid dividends. The Series A preference stock is not redeemable and ranks
junior to all series of preferred stock as to the payment of dividends and the
distribution of assets, unless the terms of any series provides otherwise. If
Series A preference stock was outstanding, a holder of Series A preference stock
would be entitled to the number of votes equal to the Adjustment Number times
the number of votes to which a holder of common stock is entitled. Except as
otherwise provided below or by law, Series A preference stock and common stock
shall vote together as one class on all matters submitted to a vote of the
holders of common stock. If any dividends on Series A preference stock shall be
in arrears for six or more quarterly dividends, a "default period" shall begin.
The default period shall end when all accrued dividends shall have been paid or
set apart for payment. During a default period, Series A preference stock shall
have the right to elect two directors. This vote shall be as a class for all
series of preference stock entitled to vote.
The Articles of Incorporation initially set the Adjustment Number at 100.
If we shall (i) pay any dividend on common stock in shares of common stock, (ii)
subdivide the common stock, or (iii) combine the common stock into a smaller
number of shares, the Adjustment Number shall be modified by multiplying it by a
fraction, the numerator of which is the number of shares of common stock
outstanding
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immediately after such event and the denominator of which is the number of
shares of common stock outstanding immediately prior to such event.
DIRECT STOCK PURCHASE AND DIVIDEND REINVESTMENT PLAN
We sponsor a direct stock purchase and dividend reinvestment plan under
which investors may purchase shares of common stock without paying brokerage
fees and other expenses. Under the plan, common stock may be purchased at the
average of the over-the-counter closing ask prices for the three trading days
prior to the fifth day of each month as quoted in the NASDAQ System. We
initially reserved 2,000,000 shares of common stock for issuance under the plan.
As of November 22, 1999, 1,202,040 shares were available for issuance under the
plan.
OTHER PROVISIONS
Articles of Incorporation. The following provisions of our Articles of
Incorporation may delay, defer or prevent a person from acquiring us or changing
control of the Board of Directors. Our Articles of Incorporation divide the
Board into three classes with staggered terms; each director is elected for a
three year term. Approximately one-third of the Board positions are filled by a
shareholder vote each year. Directors may be removed but only for cause, at an
annual meeting of shareholders and by the affirmative vote of a majority of the
shares then entitled to vote for the election of directors. In addition to
requirements imposed under Section 7A of the Michigan Business Corporation Act
(the "MBCA"), our Articles of Incorporation provide that a business combination
cannot occur unless a written opinion is obtained from an independent investment
banker that the consideration to be paid to our shareholders is fair and
reasonable; provided, however, the directors may waive this requirement. Our
Articles of Incorporation also contain provisions limiting the personal
liability of directors.
Anti-Takeover Statutes. We are subject to Chapter 7A of the MBCA, which
provides that business combinations subject to Chapter 7A between a Michigan
corporation and a beneficial owner of shares entitled to 10% or more of the
voting power of such corporation generally require the affirmative vote of 90%
of the votes of each class of stock entitled to vote, and not less than 2/3 of
each class of stock entitled to vote (excluding voting shares owned by such 10%
owner), voting as a separate class. Such requirements do not apply if (i) the
corporation's board of directors approves the transaction prior to the time the
10% owner becomes such or (ii) the transaction satisfies certain fairness
standards, certain other conditions are met and the 10% owner has been such for
at least five years.
We are also subject to Chapter 7B of the MBCA which provides that, unless a
corporation's articles of incorporation or bylaws provide that Chapter 7B does
not apply, "control shares" of a corporation acquired in a control share
acquisition have no voting rights except as granted by the stockholders of the
corporation. "Control shares" are shares which, when added to shares previously
owned by a stockholder, increase such stockholder's ownership of voting stock to
more than 20% but less than 33 1/3%, more than 33 1/3% but less than a majority,
or more than a majority, of the votes to which all of the capital stock of the
corporation is entitled. Voting rights of control shares must be approved by the
affirmative vote of a majority of all shares entitled to vote excluding voting
shares owned by the acquirer and certain officers and directors. However, no
such approval is required for gifts or other transactions not involving
consideration, for a merger to which the corporation is a party or certain other
transactions described in Chapter 7B.
Rights to Purchase Preference Stock. In January 1997, we adopted a
Shareholder's Rights Plan pursuant to which 2,000,000 shares of Series A
preference stock are reserved under the plan for sale to holders of common
stock. The common stock currently trades with a right to purchase such Series A
preference stock. The right is intended to protect shareholders in the event of
an unsolicited attempt to acquire us and becomes exercisable upon the occurrence
of certain triggering events. The right is transferred automatically with the
transfer of the common stock until separate rights certificates are distributed
upon the occurrence of certain events. The right could have the effect of
delaying, deferring or preventing a person from acquiring us or accomplishing a
change in control of the board of directors.
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Registration Rights. In connection with certain of our acquisitions, we
agreed, among other things, to file with the Commission registration statements
for shares of common stock received by the shareholders of such companies. As of
November 22, 1999, approximately 1,096,728 shares of our common stock in the
aggregate are subject to such agreements.
Transfer Agent. We are currently our own transfer agent and registrar for
our common stock. Effective as of December 1, 1999, Norwest Bank Minnesota, N.A.
will be our transfer agent and registrar for our common stock.
The common stock is traded in the over-the-counter market and is quoted on
the NASDAQ National Market System under the symbol SMGS.
DESCRIPTION OF DEBT SECURITIES
GENERAL
Our senior debt securities and subordinated debt securities (collectively,
for purposes of this section of the Prospectus, the "Debt Securities"),
consisting of notes, debentures and other evidence of indebtedness may be issued
from time to time in one or more series, in the case of the Senior Debt
Securities, under an indenture, dated as of October 23, 1998, as supplemented
from time to time (the "Senior Indenture") between us and NBD Bank, as trustee
(the "Senior Indenture Trustee"), and in the case of the Subordinated
Debentures, under an indenture as supplemented from time to time (the
"Subordinated Indenture"), between us and Bank One, Michigan, as trustee (the
"Subordinated Indenture Trustee"). The term "Indenture Trustee," as used herein,
shall refer to the Senior Indenture Trustee or the Subordinated Indenture
Trustee, as appropriate. The form of Senior Indenture and the form of the
Subordinated Indenture being sometimes referred to herein collectively as the
"Indentures" and individually as an "Indenture" are filed, along with the form
of Supplemental Indenture in the case of the Subordinated Indenture, as exhibits
to the Registration Statement to which this Prospectus is a part and, upon
execution and delivery, will be available for inspection at the corporate trust
offices of the Senior Indenture Trustee and the Subordinated Indenture Trustee,
or as described under "Available Information." The Indentures are subject to and
governed by the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act" or "TIA"). The following statements relating to the Debt Securities and the
Indentures are summaries of the provisions thereof and do not purport to be
complete and are qualified in their entirety by reference to the Indentures and
the Debt Securities. All Section references herein are to sections of the
Indentures, and capitalized terms used but not defined herein shall have the
respective meanings set forth in the Indentures and the Debt Securities. The
Subordinated Debentures are further described under "Additional Description of
Subordinated Debentures to be Issued to Trust" below.
TERMS
The Debt Securities will be our direct, unsecured obligations. The
indebtedness represented by the Senior Debt will rank on a parity with all our
other unsecured and unsubordinated indebtedness. The indebtedness represented by
the Subordinated Debentures will be subordinated in right of payment to the
prior payment in full of all our existing and future Senior Indebtedness, as
described below under "Subordination." Each Indenture provides that the Debt
Securities may be issued without limit as to aggregate principal amount, in one
or more series, in each case as established from time to time by our Board of
Directors or as established in one or more indentures supplemental to such
Indenture. Debt Securities may be issued with terms different from those of Debt
Securities previously issued. All Debt Securities of one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the holders of the Debt Securities of such
series, for issuances of additional Debt Securities of such series (Section 301
of each Indenture).
Each Indenture provides that there may be more than one Indenture Trustee
thereunder, each with respect to one or more series of Debt Securities. Any
Indenture Trustee under either Indenture may resign or be removed with respect
to one or more series of Debt Securities, and a successor Indenture Trustee
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may be appointed to act with respect to such series (Section 608 of each
Indenture). In the event that two or more persons are acting as Indenture
Trustee with respect to different series of Debt Securities, each such Indenture
Trustee shall be an Indenture Trustee of a trust under the applicable Indenture
separate and apart from the trust administered by any other Indenture Trustee
(Section 609 of each Indenture), and, except as otherwise indicated herein, any
action described herein to be taken by an Indenture Trustee may be taken by each
such Indenture Trustee with respect to, and only with respect to, the one or
more series of Debt Securities of which it is Indenture Trustee under the
applicable Indenture.
The Prospectus Supplement relating to the series of Debt Securities being
offered will contain the specific terms thereof, including, without limitation:
(1) The title and any series of such Debt Securities and whether such Debt
Securities are Senior Debt or Subordinated Debentures;
(2) The aggregate principal amount of such Debt Securities and any limit on
such principal amount;
(3) The percentage of the principal amount at which such Debt Securities
will be issued and, if other than the principal amount thereof, the portion of
the principal amount thereof payable upon declaration of acceleration of the
maturity thereof;
(4) The date or dates, or the method for determining such date or dates, on
which the principal of such Debt Securities will be payable and the amount of
principal payable thereon;
(5) The rate or rates (which may be fixed or variable) at which such Debt
Securities will bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates, or the method for determining such date
or dates, from which any such interest will accrue, the dates on which any such
interest will be payable, the record dates for such interest payment dates, or
the method by which such dates shall be determined, the persons to whom such
interest shall be payable, and the basis upon which interest shall be calculated
if other than that of a 360-day year of twelve 30-day months;
(6) The place or places where the principal of (and premium, if any) and
interest, if any, on such Debt Securities will be payable, where such Debt
Securities may be surrendered for registration of transfer or exchange and where
notices or demands to or upon us in respect of such Debt Securities and the
applicable Indenture may be served;
(7) If applicable, whether the interest payment periods may be extended by
us and, if so, the terms of any such extension;
(8) The period or periods within which, the price or prices at which, and
other terms and conditions upon which such Debt Securities may be redeemed, as a
whole or in part, at our option, if we are to have such an option;
(9) Our obligation, if any, to redeem, repay or purchase such Debt
Securities pursuant to any sinking fund or analogous provision or at the option
of a holder thereof, and the period or periods within which or the date or dates
on which, the price or prices at which, and other terms and conditions upon
which such Debt Securities will be redeemed, repaid or purchased, as a whole or
in part, pursuant to such obligation;
(10) Whether the amount of payments of principal of (and premium, if any)
or interest, if any, on such Debt Securities may be determined with reference to
an index, formula or other method and the manner in which such amounts shall be
determined;
(11) Provisions, if any, granting special rights to the holders of such
Debt Securities upon the occurrence of such events as may be specified;
(12) Any deletions from, modifications of or additions to the Events of
Default or our covenants with respect to such Debt Securities, whether or not
such Events of Default or covenants are consistent with the Events of Default or
covenants set forth in the applicable Indenture;
(13) Whether such Debt Securities will be issued in certificated or
book-entry form;
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(14) Whether such Debt Securities will be in registered or bearer form and,
if in registered form, the denominations thereof if other than $1,000 and any
integral multiple thereof and, if in bearer form, the denominations thereof and
terms and conditions relating thereto;
(15) The applicability if any, of the defeasance and covenant defeasance
provisions described herein, or any modification thereof;
(16) Whether and under what circumstances we will pay any Additional
Amounts as defined and contemplated in the applicable Indenture on such Debt
Securities in respect of any tax, assessment or governmental charge and, if so,
whether we will have the option to redeem such Debt Securities in lieu of making
such payment; and
(17) Any other terms of such Debt Securities not inconsistent with the
provisions of the applicable Indenture (Section 301 of each Indenture).
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Special U.S. federal income tax,
accounting and other considerations applicable to Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
Except as set forth below under "Certain Covenants" and as may be set forth
in any Prospectus Supplement, the Indentures will not contain any provisions
that would limit our ability to incur indebtedness or that would afford holders
of Debt Securities protection in the event of a highly leveraged or similar
transaction involving us or in the event of a change of control. You should
refer to the applicable Prospectus Supplement for information with respect to
any deletions from, modifications of, or additions to the events of default or
covenants of us that are described below, including any addition of a covenant
or other provision providing event risk or similar protection.
DENOMINATIONS, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities of any series issued in registered form will be issuable in
denominations of $1,000 and integral multiples thereof. Unless otherwise
specified in the applicable Prospectus Supplement, the Debt Securities of any
series issued in bearer form will be issuable in denominations of $5,000
(Section 302 of each Indenture).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium if any) and interest on any series of Senior Debt will
be payable at the corporate trust office of the Senior Indenture Trustee, and
the principal of (and premium, if any) and interest on any series of
Subordinated Debentures will be payable at the corporate trust office of the
Subordinated Indenture Trustee; provided that, at our option, payment of
interest on any series of Debt Securities may be made by check mailed to the
address of the Person entitled thereto as it appears in the applicable register
for such Debt Securities or by wire transfer of funds to such person at an
account maintained within the United States (Sections 301, 307 and 1002 of each
Indenture).
Any interest not punctually paid or duly provided for on any interest
payment date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the holder on the applicable Regular Record
Date and may either be paid to the Person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Indenture Trustee, notice whereof shall be given to the holder of such Debt
Security not less than 10 days prior to such Special Record Date, or may be paid
at any time in any other lawful manner, all as more completely described in the
applicable Indenture (Section 307 of each Indenture).
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of such
Debt Securities at the corporate trust office of the applicable Indenture
Trustee referred to above. In addition,
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subject to certain limitations imposed upon Debt Securities issued in book-entry
form, the Debt Securities of any series may be surrendered for registration of
transfer or exchange thereof at the corporate trust office of the applicable
Indenture Trustee. Every Debt Security surrendered for registration of transfer
or exchange must be duly endorsed or accompanied by a written instrument of
transfer. No service charge will be made for any registration of transfer or
exchange of any Debt Securities, but we may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith
(Section 305 of each Indenture). If the applicable Prospectus Supplement refers
to any transfer agent (in addition to the applicable Indenture Trustee)
initially designated by us with respect to any series of Debt Securities, we may
at any time rescind the designation of any such transfer agent or approve a
change in the location through which any such transfer agent acts, except that
the trust will be required to maintain a transfer agent in each place of payment
for such series. We may at any time designate additional transfer agents with
respect to any series of Debt Securities (Section 1002 of each Indenture).
Neither we nor any Indenture Trustee shall be required to (i) issue,
register the transfer of or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before any selection of Debt
Securities of that series to be redeemed and ending at the close of business on
the day of mailing of the relevant notice of redemption; (ii) register the
transfer of or exchange any Debt Security or portion thereof, called for
redemption, except the unredeemed portion of any Debt Security being redeemed in
part; or (iii) issue, register the transfer of or exchange any Debt Security
that has been surrendered for repayment at the option of the holder, except the
portion, if any, of such Debt Security not to be so repaid (Section 305 of each
Indenture).
MERGER, CONSOLIDATION OR SALE
The Senior Indenture provides that we will be permitted to consolidate
with, or sell, lease or convey all or substantially all of our assets to, or
merge with or into, any other entity provided that (a) either we shall be the
continuing entity, or the successor entity (if other than us) formed by or
resulting from any such consolidation or merger or which shall have received the
transfer of such assets shall expressly assume payment of the principal of (and
premium, if any) and interest on all of the Senior Debt and the due and punctual
performance and observance of all of the covenants and conditions contained in
the Senior Indenture; (b) immediately after giving effect to such transaction
and treating any indebtedness that becomes an obligation of us or any Subsidiary
as a result thereof as having been incurred by us or such Subsidiary at the time
of such transaction, no Event of Default under the Senior Indenture, and no
event which, after notice or the lapse of time, or both, would become such an
Event of Default, shall have occurred and be continuing; and (c) an officer's
certificate and legal opinion covering such conditions shall be delivered to the
Indenture Trustee (Sections 801 and 803 of the Senior Indenture). The provisions
of the Subordinated Indenture regarding merger, consolidation and sale are
discussed in "Additional Description of Subordinated Debentures to be Issued to
Trust -- Consolidation, Merger and Sale" below.
CERTAIN COVENANTS
Limitations on Liens. The Indentures provide that we shall not, and shall
not cause or permit any Subsidiary to, issue, assume or guarantee any Debt
secured by a Lien upon any of our property or assets (other than cash) or that
of such Subsidiary, as applicable, without effectively providing that the
outstanding Debt Securities (together with, if we so determine, any other
indebtedness or obligation then existing or thereafter created ranking equally
with such Debt Securities) shall be secured equally and ratably with (or prior
to) such Debt so long as such Debt shall be so secured. The foregoing
restriction on Liens will not, however, apply to:
(a) Liens in existence on the date of original issue of such Debt
Securities;
(b) (i) any Lien created or arising over any property which is
acquired, constructed or created by us, or any of our Subsidiaries, but
only if (A) such Lien secures only principal amounts (not exceeding the
cost of such acquisition, construction or creation) raised for the purposes
of such acquisition, construction or creation, together with any costs,
expenses, interest and fees incurred in
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relation thereto or a guarantee given in respect thereof, (B) such Lien is
created or arises on or before 90 days after the completion of such
acquisition, construction or creation and (C) such Lien is confined solely
to the property so acquired, constructed or created; or (ii) any Lien to
secure our Debt or the Debt of a Subsidiary incurred in connection with a
specifically identifiable project where the Lien relates to and is confined
to a property or properties (including, without limitation, shares or other
rights of ownership in the entities which own such property or project)
involved in such project and acquired by us or a Subsidiary after the date
of original issue of the Debt Securities of any series and the recourse of
the creditors in respect of such Debt is limited to any or all of such
project and property (including as aforesaid);
(c) any Lien securing amounts not more than 90 days overdue or
otherwise being contested in good faith;
(d) (i) rights of financial institutions to offset credit balances in
connection with the operation of cash management programs established for
our benefit or the benefit of a Subsidiary or in connection with the
issuance of letters of credit for the benefit of the us or a Subsidiary;
(ii) any Lien securing our Debt or the Debt of a Subsidiary incurred in
connection with the financing of accounts receivable; (iii) any Lien
incurred or deposits made in the ordinary course of business, including,
but not limited to, (A) any mechanics', materialmens', carriers',
workmens', vendors' or other like Liens and (B) any Liens securing amounts
in connection with workers' compensation, unemployment insurance and other
types of social security; (iv) any Lien upon specific items of inventory or
other goods and proceeds of us or a Subsidiary securing obligations of us
or a Subsidiary in respect of bankers' acceptances issued or created for
the account of such person to facilitate the purchase, shipment or storage
of such inventory or other goods; (v) any Lien incurred or deposits made
securing the performance of tenders, bids, leases, trade contracts (other
than for borrowed money), statutory obligations, surety bonds, appeal
bonds, government contracts, performance bonds, return-of-money bonds and
other obligations of like nature incurred in the ordinary course of
business; (vi) any Lien constituted by a right of set off or right over a
margin call account or any form of cash or cash collateral or any similar
arrangement for obligations incurred in respect of the hedging or
management of risks under transactions involving any currency or interest
rate swap, cap or collar arrangements, forward exchange transaction,
option, warrant, forward rate agreement, futures contract or other
derivative instrument of any kind; (vii) any Lien arising out of title
retention or like provisions in connection with the purchase of goods and
equipment in the ordinary course of business; and (viii) any Lien securing
reimbursement obligations under letters of credit, guaranties and other
forms of credit enhancement given in connection with the purchase of goods
and equipment in the ordinary course of business;
(e) Liens in favor of us or a Subsidiary;
(f) (i) Liens on any property or assets acquired from a corporation
which is merged with or into us or a Subsidiary, or any Liens on the
property or assets of any corporation or other entity existing at the time
such corporation or other entity becomes a Subsidiary of us and, in either
such case, is not created in anticipation of any such transaction (unless
such Lien is created to secure or provide for the payment of any part of
the purchase price of such corporation); (ii) any Lien on any property or
assets existing at the time of acquisition thereof and which is not created
in anticipation of such acquisition (unless such Lien was created to secure
or provide for the payment of any part of the purchase price of such
property or assets); and (iii) any Lien created or outstanding on or over
any asset of any Person which becomes a Subsidiary on or after the date of
the issuance of such Debt Securities when such Lien is created prior to the
date on which such Person becomes a Subsidiary;
(g) (i) Liens required by any contract or statute in order to permit
us or a Subsidiary to perform any contract or subcontract made by us or it
with or at the request of a governmental entity or any department, agency
or instrumentality thereof, or to secure partial, progress, advance or any
other payments by us or a Subsidiary to such governmental unit pursuant to
the provisions of any contract or statute; (ii) any Lien securing
industrial revenue, development or similar bonds issued by
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or for the benefit of us or a Subsidiary, provided that such industrial
revenue, development or similar bonds are nonrecourse to us or such
Subsidiary; and (iii) any Lien securing taxes or assessments or other
applicable governmental charges or levies;
(h) (i) any Lien which arises pursuant to any order of attachment,
distrait or similar legal process arising in connection with court
proceedings and any Lien which secures the reimbursement obligation for any
bond obtained in connection with an appeal taken in any court proceeding,
so long as the execution or other enforcement of such Lien arising pursuant
to such legal process is effectively stayed and the claims secured thereby
are being contested in good faith and, if appropriate, by appropriate legal
proceedings, or any Lien in favor of a plaintiff or defendant in any action
before a court or tribunal as security for costs and/or other expenses; or
(ii) any Lien arising by operation of law or by order of a court or
tribunal or any Lien arising by an agreement of similar effect, including,
without limitation, judgment liens; or
(i) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, or any Liens referred to
in the foregoing clauses, for amounts not exceeding the principal amount of
the Debt secured by the Lien so extended, renewed or replaced, provided
that such extension, renewal or replacement Lien is limited to all or a
part of the same property or assets that were covered by the Lien extended,
renewed or replaced (plus improvements on such property or assets) (Section
1011 of each Indenture).
Limitations on Sale and Leaseback Transactions. The Indentures also provide
that we will not, and will not permit any Subsidiary to, enter into any
arrangement with any Person (other than us or a Subsidiary), providing for the
leasing to us or a Subsidiary of any assets which have been or are to be sold or
transferred by us or such Subsidiary to such Person (a "Sale and Lease-Back
Transaction") unless: (a) such transaction involves a lease for a temporary
period not to exceed three years; (b) such transaction is between us or a
Subsidiary and an affiliate of ours; (c) we would be entitled to incur debt
secured by a Lien on the assets or property involved in such transaction at
least equal in amount to the Attributable Debt with respect to such Sale and
Lease-Back Transaction, without equally and ratably securing the Debt
Securities, pursuant to the limitation on Liens described above; (d) such
transaction is entered into within 90 days after the initial acquisition by us
of the assets or property subject to such transaction; (e) after giving effect
thereto, the aggregate amount of all Attributable Debt with respect to all such
Sale and Lease-Back Transactions does not exceed 10% of Consolidated Net
Tangible Assets; or (f) we or a Subsidiary within the twelve months preceding
the sale or transfer or the twelve months following the sale or transfer,
regardless of whether such sale or transfer may have been made by us or such
Subsidiary, apply in the case of a sale or transfer for cash, an amount equal to
the net proceeds thereof and, in the case of a sale or transfer otherwise than
for cash, an amount equal to the fair value of the assets so leased at the time
of entering into such arrangement (as determined by our Board of Directors or
the Board of Directors of such Subsidiary), (i) to the retirement of debt,
incurred or assumed by us or a Subsidiary, which by its terms matures at, or is
extendible or renewable at the option of the obligor to, a date more than twelve
months after the date of incurring, assuming or guaranteeing such debt or (ii)
to investment in any of our assets or the assets of any Subsidiary (Section 1012
of each Indenture).
Existence. Except as permitted under "Merger, Consolidation or Sale," we
will be required to do or cause to be done all things necessary to preserve and
keep in full force and effect our existence, rights and franchises; provided,
however, that we shall not be required to preserve any right or franchise if we
determine that the preservation thereof is no longer desirable in the conduct of
our business (Section 1004 of each Indenture).
Maintenance of Properties. We will be required to cause all of our material
properties used or useful in the conduct of our business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in our
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judgment may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times (Section
1005 of each Indenture).
Insurance. We will be required to, and will be required to cause each of
our Subsidiaries to, keep all of our insurable properties insured against loss
or damage at least equal to their then full insurable value with insurers of
recognized responsibility and, if described in the applicable Prospectus
Supplement, having a specified rating from a recognized insurance rating service
(Section 1006 of each Indenture).
Payment of Taxes and Other Claims. We will be required to pay or discharge
or cause to be paid or discharged, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges levied or imposed upon us or any
Subsidiary or upon our income, profits or property or, that of any Subsidiary,
and (ii) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a material lien upon our property or that of any Subsidiary;
PROVIDED, HOWEVER, that we shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith (Section 1007 of each
Indenture).
Provision of Financial Information. Whether or not we are subject to
Section 13 or 15(d) of the Exchange Act, we will be required, within 15 days of
each of the respective dates by which we would have been required to file annual
reports, quarterly reports and other documents with the Commission if we were so
subject, to (i) transmit by mail to all holders of Debt Securities, as their
names and addresses appear in the applicable register for such Debt Securities,
without cost to such holders, copies of the annual reports, quarterly reports
and other documents that we would have been required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act if we were subject to such
sections, (ii) file with the applicable Indenture Trustee copies of the annual
reports, quarterly reports and other documents that we would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if we were subject to such Sections, and (iii) promptly upon written request and
payment of the reasonable cost of duplication and delivery, supply copies of
such documents to any prospective holder (Section 1008 of each Indenture).
Additional Covenants. Any of our additional covenants with respect to any
series of Debt Securities will be set forth in the Prospectus Supplement
relating thereto.
EVENTS OF DEFAULT, NOTICE AND WAIVER
Each Indenture will provide that the following events are "Events of
Default" with respect to any series of Debt Securities issued thereunder: (a)
default for 30 days in the payment of any installment of interest or Additional
Amounts, or Additional Interest, as applicable, payable on any Debt Security of
such series; (b) default in the payment of principal of (or premium, if any, on)
any Debt Security of such series at its maturity; (c) default in making any
sinking fund payment as required for any Debt Security of such series; (d)
default in the performance or breach of any other covenant or warranty of ours
contained in the Indenture (other than a covenant added to the Indenture solely
for the benefit of a series of Debt Securities issued thereunder other than such
series), continued for 60 days after written notice as provided in the
Indenture; (e) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by us (including obligations under leases
required to be capitalized on the balance sheet of the lessee under generally
accepted accounting principles but not including any indebtedness or obligations
for which recourse is limited to property purchased) in an aggregate principal
amount in excess of $5,000,000 or under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any indebtedness for money borrowed by us (including such leases, but not
including such indebtedness or obligations for which recourse is limited to
property purchased) in an aggregate principal amount in excess of $5,000,000,
whether such indebtedness now exists or shall hereafter be created which default
shall have resulted in such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable or such obligations being accelerated, without such acceleration having
been rescinded or annulled; (f) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver,
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liquidator or trustee of us or any Significant Subsidiary of ours; and (g) any
other event of default provided with respect to a particular series of Debt
Securities (Section 501 of each Indenture). The term "Significant Subsidiary"
means each of our significant subsidiaries (as defined in Regulation S-X
promulgated under the Securities Act).
If an Event of Default under either Indenture with respect to Debt
Securities of any series at the time outstanding occurs and is continuing, then
in every such case the Indenture Trustee or the holders of not less than 25% in
principal amount of the outstanding Debt Securities of that series will have the
right to declare the principal amount (or, if the Debt Securities of that series
are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms thereof) of, and premium, if any, on all of the
Debt Securities of that series to be due and payable immediately by written
notice thereof to us (and to the Indenture Trustee if given by the holders).
However, at any time after such a declaration of acceleration with respect to
Debt Securities of such series (or of all Debt Securities then outstanding under
the applicable Indenture, as the case may be) has been made, but before a
judgment or decree for payment of the money due has been obtained by the
Indenture Trustee, the holders of not less than a majority in principal amount
of outstanding Debt Securities of such series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be) may rescind and
annul such declaration and its consequences if (a) we shall have deposited with
the applicable Indenture Trustee all required payments of the principal of (and
premium, if any) and interest, and any Additional Amounts, on the Debt
Securities of such series (or of all Debt Securities then outstanding under the
applicable Indenture, as the case may be), plus certain fees, expenses,
disbursements and advances of such Indenture Trustee and (b) all Events of
Default, other than the non-payment of accelerated principal (or specified
portion thereof and the premium, if any) or interest, with respect to Debt
Securities of such series (or of all Debt Securities then outstanding under the
applicable Indenture, as the case may be) have been cured or waived as provided
in the applicable Indenture (Section 502 of each Indenture). Each Indenture also
provides that the holders of not less than a majority in principal amount of the
outstanding Debt Securities of any series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be) may waive any
past default with respect to such series and its consequences, except a default
(x) in the payment of the principal of (or premium, if any) or interest or
Additional Amounts, or Additional Interest, as applicable, payable on any Debt
Security of such series or (y) in respect of a covenant or provision contained
in the applicable Indenture that cannot be modified or amended without the
consent of the holder of each outstanding Debt Security affected thereby
(Section 513 of each Indenture).
Each Indenture Trustee will be required to give notice to the holders of
Debt Securities within 90 days of a default under the applicable Indenture
unless such default shall have been cured or waived; PROVIDED, HOWEVER, that
such Indenture Trustee may withhold notice to the holders of any series of Debt
Securities of any default with respect to such series (except a default in the
payment of the principal of (or premium, if any) or interest or Additional
Amounts, or Additional Interest, as applicable, payable on any Debt Security of
such series or in the payment of any sinking fund installment in respect of any
Security of such series) if specified responsible officers of such Indenture
Trustee consider such withholding to be in the interest of such holders (Section
601 of each Indenture).
Each Indenture will provide that no holders of Debt Securities of any
series may institute any proceedings, judicial or otherwise, with respect to
such Indenture or for any remedy thereunder, except in the cases of failure of
the Indenture Trustee, for 60 days, to act after it has received a written
request to institute proceedings in respect of an event of default from the
holders of not less than 25% in principal amount of the outstanding Debt
Securities of such series, as well as an offer of indemnity reasonably
satisfactory to it (Section 507 of each Indenture). This provision will not
prevent, however, any holder of Debt Securities from instituting suit for the
enforcement of payment of the principal of (and premium, if any), interest on
and Additional Amounts, or Additional Interest, as applicable, payable with
respect to, such Debt Securities at the respective due dates thereof.
Subject to provisions in each Indenture relating to its duties in case of
default, each Indenture Trustee will not be under any obligation to exercise any
of its rights or powers under the applicable Indenture at
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the request or direction of any holders of any series of Debt Securities then
outstanding under such Indenture, unless such holders shall have offered to the
Indenture Trustee thereunder reasonable security or indemnity (Section 602 of
each Indenture). The holders of not less than a majority in principal amount of
the outstanding Debt Securities of any series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be) shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Indenture Trustee, or of exercising any trust or power
conferred upon such Indenture Trustee. However, an Indenture Trustee may refuse
to follow any direction which is in conflict with any law or the Indenture,
which may involve the Indenture Trustee in personal liability or which may be
unduly prejudicial to the holders of Debt Securities of such series not joining
therein (Section 512 of each Indenture).
Within 120 days after the close of each fiscal year, we will be required to
deliver to each Indenture Trustee a certificate, signed by one of our several
specified officers, stating whether or not such officer has knowledge of any
default under the applicable Indenture and, if so, specifying each such default
and the nature and status thereof (Section 1009 of each Indenture).
Additional provisions of the Subordinated Indenture regarding Events of
Default are discussed in "Additional Description of Subordinated Debentures to
be Issued to Trust -- Subordinated Indenture Additional Events of Default"
below.
MODIFICATION OF THE INDENTURES
Modifications and amendments of either Indenture will be permitted to be
made only with the consent of the holders of not less than a majority in
principal amount of all outstanding Debt Securities issued under each Indenture
which are affected by such modification or amendment; PROVIDED, HOWEVER, that no
such modification or amendment may, without the consent of the holder of each
such Debt Security affected thereby, (a) change the stated maturity of the
principal of (or premium, if any), or any installment of principal of or
interest payable on, any such Debt Security; (b) reduce the principal amount of,
or the rate or amount of interest on, or any premium payable on redemption of,
or Additional Amounts, or Additional Interest, as applicable, payable with
respect to, any such Debt Security, or reduce the amount of principal of an
Original Issue Discount Security that would be due and payable upon declaration
of acceleration of the maturity thereof or would be provable in bankruptcy, or
adversely affect any right of repayment of the holder of any such Debt Security;
(c) change the place of payment, or currency, for payment of principal of (and
premium, if any), or interest on, or any Additional Amounts, or Additional
Interest, as applicable, payable with respect to, any such Debt Security; (d)
impair the right to institute suit for the enforcement of any payment on or with
respect to any such Debt Security; (e) reduce the above-stated percentage of
outstanding Debt Securities of any series necessary to modify or amend the
applicable Indenture, to waive compliance with certain provisions thereof or
certain defaults and consequences thereunder or to reduce the quorum or voting
requirements set forth in the Indenture; or (f) modify any of the foregoing
provisions or any of the provisions relating to the waiver of certain past
defaults or certain covenants, except to increase the required percentage to
effect such action or to provide that certain other provisions may not be
modified or waived without the consent of the holder of such Debt Security
(Section 902 of each Indenture).
The holders of not less than a majority in principal amount of outstanding
Debt Securities issued under either Indenture will have the right to waive
compliance by us with certain covenants in such Indenture (Section 1013 of each
Indenture).
Modifications and amendments of each Indenture will be permitted to be made
by us and the applicable Indenture Trustee thereunder without the consent of any
holder of Debt Securities for any of the following purposes: (i) to evidence the
succession of another person to us as obligor under the applicable Indenture;
(ii) to add to our covenants for the benefit of the holders of all or any series
of Debt Securities or to surrender a right or power conferred upon us in the
applicable Indenture; (iii) to add events of default for the benefit of the
holders of all or any series of Debt Securities; (iv) to add or change any
provisions of the applicable Indenture to facilitate the issuance of, or to
liberalize certain terms of,
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Debt Securities in bearer form, or to permit or facilitate the issuance of Debt
Securities in uncertificated form, PROVIDED that such action shall not adversely
affect the interests of the holders of the Debt Securities of any series in any
material aspect; (v) to change or eliminate any provisions of the applicable
Indenture, PROVIDED that any such change or elimination shall become effective
only when there are no Debt Securities outstanding of any series created prior
thereto which are entitled to the benefit of such provision; (vi) to secure the
Debt Securities; (vii) to establish the form or terms of Debt Securities of any
series; (viii) to provide for the acceptance of appointment by a successor
Indenture Trustee or facilitate the administration of the trusts imposed under
the applicable Indenture by more than one Indenture Trustee; (ix) to cure any
ambiguity, defect or inconsistency in the applicable Indenture, PROVIDED that
such action shall not adversely affect the interests of holders of Debt
Securities of any series issued under such Indenture in any material respect; or
(x) to supplement any of the provisions of such Indenture to the extent
necessary to permit or facilitate defeasance and discharge of any series of such
Debt Securities, PROVIDED that such action shall not adversely affect the
interests of the holders of the Debt Securities of any series in any material
respect (Section 901 of each Indenture).
Each Indenture will provide that in determining whether the holders of the
requisite principal amount of outstanding Debt Securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
shall be deemed to be outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof, and (ii) Debt Securities
owned by us or any other obligor upon the Debt Securities or any affiliate of us
or of such other obligor shall be disregarded (Section 104 of each Indenture).
Each Indenture will contain provisions for convening meetings of the
holders of Debt Securities of a series (Section 1501 of each Indenture). A
meeting will be permitted to be called at any time by the applicable Indenture
Trustee, and also, upon request, by us or the holders of at least 10% in
principal amount of the outstanding Debt Securities of such series, in any such
case upon notice given as provided in the applicable Indenture (Section 1502 of
each Indenture). Except for any consent that must be given by the holder of each
Debt Security affected by certain modifications and amendments of the applicable
Indenture, any resolution presented at a meeting or adjourned meeting duly
reconvened at which a quorum is present may be adopted by the affirmative vote
of the holders of a majority in principal amount of the outstanding Debt
Securities of that series; PROVIDED, HOWEVER, that, except as referred to above,
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that may be made, given or taken by the
holders of a specified percentage, which is less than a majority, in principal
amount of the outstanding Debt Securities of a series may be adopted at a
meeting or adjourned meeting or adjourned meeting duly reconvened at which a
quorum is present by the affirmative vote of the holders of such specified
percentage in principal amount of the outstanding Debt Securities of that
series. Any resolution passed or decision taken at any meeting of holders of
Debt Securities of any series duly held in accordance with the applicable
Indenture will be binding on all holders of Debt Securities of that series. The
quorum at any meeting called to adopt a resolution, and at an reconvened
meeting, will be persons holding or representing a majority in principal amount
of the outstanding Debt Securities of a series; PROVIDED, HOWEVER, that if any
action is to be taken at such meeting with respect to a consent or waiver which
may be given by the holders of not less than a specified percentage in principal
amount of the outstanding Debt Securities of a series, the persons holding or
representing such specified percentage in principal amount of the outstanding
Debt Securities of such series will constitute a quorum (Section 1504 of each
Indenture).
Notwithstanding the foregoing provisions, each Indenture will provide that
if any action is to be taken at a meeting of holders of Debt Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver and other action that the Indenture expressly provides may be
made, given or taken by the holders of a specified percentage in principal
amount of all outstanding Debt Securities affected thereby, or of the holders of
such series and one or more additional series: (i) there shall be no minimum
quorum requirement for such meeting, and (ii) the principal amount of the
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outstanding Debt Securities of such series that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or other action shall
be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been made,
given or taken under the Indenture (Section 1504 of each Indenture).
SUBORDINATION
Upon any distribution to our creditors in a liquidation, dissolution or
reorganization, the payment of the principal of and interest on the Subordinated
Debentures will be subordinated to the extent provided in the Subordinated
Indenture in right of payment to the prior payment in full of all Senior
Indebtedness defined below (Sections 1601 and 1602 of the Subordinated
Indenture), but our obligation to make payment of the principal and interest on
the Subordinated Debentures will not otherwise be affected (Section 1606 of the
Subordinated Indenture). No payment of principal or interest may be made on the
Subordinated Debentures at any time if (i) any Senior Indebtedness is not paid
when due and any applicable grace period has ended or such default has not been
waived; (ii) a default on Senior Indebtedness exists that permits the holders of
such Senior Indebtedness to accelerate its maturity or (iii) notice has been
given of the exercise of an option to require repayment or prepayment of Senior
Indebtedness (Section 1603 of the Subordinated Indenture). After all Senior
Indebtedness is paid in full and until the Subordinated Debentures are paid in
full, holders will be subrogated to the rights of holders of Senior Indebtedness
to the extent that distributions otherwise payable to holders have been applied
to the payment of Senior Indebtedness (Section 1605 of the Subordinated
Indenture). By reason of such subordination, in the event of a distribution of
assets upon insolvency, certain of our general creditors may recover more,
ratably, than holders of the Subordinated Debentures.
Senior Indebtedness is defined in the Subordinated Indenture as, (i) any
payment due in respect of indebtedness of a Person, whether outstanding at the
date of execution of the Subordinated Indenture or thereafter incurred, created
or assumed, (a) in respect of money borrowed (including any financial
derivative, hedging or futures contract or similar instrument) and (b) evidenced
by securities, debentures, bonds, notes or other similar instruments issued by
such Person which, by their terms, are senior or senior subordinated debt
securities including, without limitation, all obligations under its indentures
with various trustees; (ii) all capital lease obligations; (iii) all obligations
issued or assumed as the deferred purchase price of property, all conditional
sale obligations and all obligations of such Person under any title retention
agreement (but excluding trade accounts payable arising in the ordinary course
of business and long-term purchase obligations); (iv) all obligations for the
reimbursement of any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (v) all obligations of the type referred
to in clauses (i) through (iv) above of other Persons the payment of which such
Person is responsible or liable as obligor, guarantor or otherwise; and (vi) all
obligations of the type referred to in clauses (i) through (v) above of other
Persons secured by any lien on any property or asset of such Person (whether or
not such obligation is assumed by such Person), except for (1) any such
indebtedness that is by its terms subordinated to or pari passu with the
Subordinated Debentures and (2) any unsecured indebtedness between or among such
Person or its Affiliates. At November 22, 1999, Senior Indebtedness aggregated
approximately $536,000,000. There are no restrictions in the Subordinated
Indenture upon the creation of additional Senior Indebtedness.
Upon payment in full of all amounts due on the Senior Indebtedness then
outstanding, the rights of the holders of the Subordinated Debentures will be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions applicable to such Senior Indebtedness until all
amounts owing on the Subordinated Debentures are paid in full.
In addition, because we are a holding company our right, and hence the
right of our creditors (including any holder of Subordinated Debentures), to
participate in any distribution of the assets of any subsidiary upon its
liquidation or recognition or otherwise is necessarily subject to the prior
claims of creditors of such subsidiary, except to the extent that our claims as
a creditor of such subsidiary may be recognized. There is no restriction in the
Subordinated Indenture against our subsidiaries incurring secured or unsecured
indebtedness or issuing secured or unsecured securities. Our ability to make
payments of
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principal and interest on the Subordinated Debentures will be dependent upon the
payment to it by its subsidiaries of dividends, loans or advances.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Under each Indenture, we may discharge certain obligations to holders of
any series of Debt Securities issued thereunder that have not already been
delivered to the applicable Indenture Trustee for cancellation and that either
have become due and payable or will become due and payable within one year (or
scheduled for redemption within one year) by irrevocably depositing with the
applicable Indenture Trustee, in trust, funds in an amount sufficient to pay the
entire indebtedness on such Debt Securities in respect of principal (and
premium, if any) and interest and any Additional Amounts, or Additional
Interest, as applicable, payable to the date of such deposit (if such Debt
Securities have become due and payable) or to the stated maturity or redemption
date, as the case may be (Section 401 of each Indenture).
Each Indenture will provide that, if the provisions of Article Fourteen
thereof are made applicable to the Debt Securities of or within any series
pursuant to Section 301 of such Indenture, we may elect either (a) to defease
and be discharged from any and all obligations with respect to such Debt
Securities (except for the obligations to pay Additional Amounts, or Additional
Interest, as applicable, if any, upon the occurrence of certain events of tax,
assessment or governmental charge with respect to payments on such Debt
Securities and the obligations to register the transfer or exchange of such Debt
Securities, to replace temporary or mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of such Debt Securities
and to hold moneys for payment in trust) ("defeasance") (Section 1402 of each
Indenture) or (b) to be released from our obligations with respect to such Debt
Securities under Sections 1004 to 1008, inclusive, and Sections 1011 and 1012
under such Indenture (being the restrictions described under "Certain
Covenants") or, if provided pursuant to such Indenture, our obligations with
respect to any other covenant, and any omission to comply with such obligations
shall not constitute an event of default with respect to such Debt Securities
("covenant defeasance") (Section 1403 of each Indenture), in either case upon
the irrevocable deposit by us with the applicable Indenture Trustee, in trust,
of an amount of money, or Government Obligations (as defined below), or both,
applicable to such Debt Securities which through the scheduled payment of
principal and interest in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium, if any) and interest on
such Debt Securities, and any mandatory sinking fund or analogous payments
thereon, on the scheduled due dates therefor (Section 1404 of each Indenture).
Such a trust will only be permitted to be established if, among other
things, we have delivered to the applicable Indenture Trustee an opinion of
counsel (as specified in each Indenture) to the effect that the holders of such
Debt Securities will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such defeasance or covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance or covenant
defeasance had not occurred, and such opinion of counsel, in the case of
defeasance, will be required to refer to and be based upon a ruling of the
Internal Revenue Service or a change in applicable United States federal income
tax law occurring after the date of such Indenture (Section 1404 of each
Indenture).
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guarantee as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, PROVIDED that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
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interest on or principal of the Government Obligation evidenced by such
depository receipt (Section 101 of each Indenture).
In the event we effect covenant defeasance with respect to any Debt
Securities and such Debt Securities are declared due and payable because of the
occurrence of any Event of Default other than the Event of Default described in
clause (d) under "Events of Default, Notice and Waiver" with respect to Sections
1004 to 1008, inclusive, and Sections 1011 and 1012 of either Indenture (which
sections would no longer be applicable to such Debt Securities) or described in
clause (g) under "Events of Default, Notice and Waiver" with respect to any
other covenant as to which there has been covenant defeasance, the amount in
which such Debt Securities are payable, and Government Obligations on deposit
with the applicable Indenture Trustee, will be sufficient to pay amounts due on
such Debt Securities at the time of their stated maturity but may not be
sufficient to pay amounts due on such Debt Securities at the time of the
acceleration resulting from such Event of Default. However, we would remain
liable to make payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (the "Global Securities") that will be
deposited with, or on behalf of, a depositary identified in the applicable
Prospectus Supplement relating to such series. Global Securities may be issued
in either registered or bearer form and in either temporary or permanent form.
The specific terms of the depositary arrangement with respect to a series of
Debt Securities will be described in the applicable Prospectus Supplement
relating to such series.
GOVERNING LAW
The Indentures, each Supplemental Indenture thereto, the Senior Debt and
the Subordinated Debentures will be governed by the laws of the State of New
York.
DESCRIPTION OF TRUST PREFERRED SECURITIES
Each trust may issue only one series of Trust Preferred Securities having
terms described in the prospectus supplement relating thereto. Each Trust
Agreement will be qualified as an indenture under the Trust Indenture Act and
will contain the terms of Trust Preferred Securities.
The Property Trustee will act as indenture trustee for purposes of the
Trust Indenture Act. The Trust Preferred Securities will have such terms,
including distributions, redemption, voting, liquidation rights and such other
preferred, deferred or other special rights or such restrictions as will be set
forth in the Trust Agreement or made part of the Trust Agreement by the Trust
Indenture Act and which will correspond to the terms of the Subordinated
Debentures held by the Trust and described in the Prospectus Supplement relating
thereto.
The Prospectus Supplement relating to the Trust Preferred Securities of a
trust will include the specific terms of the series of trust preferred
securities being issued, including:
(i) the distinctive designation of the Trust Preferred Securities;
(ii) the number of Trust Preferred Securities issuable by the Trust;
(iii) the annual distribution rate (or method of determining such
rate) for Trust Preferred Securities and the date or dates upon which such
distributions will be payable;
(iv) whether distributions on Trust Preferred Securities will be
cumulative, and, in the case of Trust Preferred Securities having such
cumulative distribution rights, the date or dates or method of
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determining the date or dates from which distributions on Trust Preferred
Securities will be cumulative;
(v) the amount or amounts which will be paid out of the assets of the
Trust to the holders of Trust Preferred Securities upon voluntary or
involuntary dissolution, winding-up or termination of the Trust;
(vi) the obligation, if any, of the Trust to purchase or redeem Trust
Preferred Securities and the price or prices at which, the period or
periods within which, and the terms and conditions upon which Trust
Preferred Securities will be purchased or redeemed, in whole or in part,
pursuant to such obligation;
(vii) the voting rights, if any, of holders of Trust Preferred
Securities in addition to those required by law, including the number of
votes per Trust Preferred Security and any requirement for approval by the
holders of such Trust Preferred Securities, as a condition to specified
action or amendments to the Trust Agreement;
(viii) the terms and conditions, if any, upon which the Subordinated
Debentures owned by the Trust may be distributed to holders of Trust
Preferred Securities;
(ix) if applicable, any securities exchange upon which the Trust
Preferred Securities will be listed; and
(x) any other relevant rights, preferences, privileges, limitations or
restrictions of Trust Preferred Securities not inconsistent with the Trust
Agreement or with applicable law.
We will guarantee distributions on Trust Preferred Securities to the extent
set forth below under "Description of the Trust Guarantee." Certain United
States federal income tax considerations applicable to Trust Preferred
Securities will be described in a Prospectus Supplement relating to the Trust
Preferred Securities.
Each Trust will issue a series of Trust Common Securities in connection
with the issuance of Trust Preferred Securities. Except for voting rights, the
terms of Trust Common Securities will be substantially identical to the terms of
Trust Preferred Securities. Trust Common Securities will rank pari passu with
Trust Preferred Securities except that, upon an event of default under the Trust
Agreement, the rights of holders of Trust Common Securities to payments will be
subordinated to the rights of holders of Trust Preferred Securities. The Trust
Common Securities will also carry the right to vote to appoint, remove or
replace any Trustee of the Trust. We will own all of the Trust Common
Securities.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES
If an Event of Default as defined and provided in a Trust Agreement occurs
and is continuing, then the holders of Trust Preferred Securities of such Trust
would rely on the enforcement by the Property Trustee of such Trust of its
rights as a holder of the applicable series of Subordinated Debentures against
us. In addition, the holders of a majority in aggregate liquidation amount of
Trust Preferred Securities of such Trust will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to such
Property Trustee or to direct the exercise of any trust or power conferred upon
such Property Trustee under such Trust Agreement, including the right to direct
such Property Trustee to exercise the remedies available to it as a holder of
Subordinated Debentures provided that such direction shall not be in conflict
with any rule of law or with such Trust Agreement, and could not involve such
Property Trustee in personal liability in circumstances where reasonable
indemnity would not be adequate. If such Property Trustee fails to enforce its
rights under the Subordinated Debentures held by such Trust, a holder of Trust
Preferred Securities of such Trust may, to the extent permitted by law,
institute a legal proceeding directly against us to enforce such Property
Trustee's rights under such Trust Agreement without first instituting any legal
proceeding against such Property Trustee or any other entity or person,
including such Trust; it being understood and intended that no one or more of
such holders shall have any right in any manner whatsoever by virtue of, or by
availing of, any provision of such Trust Agreement to
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affect, disturb or prejudice the rights of any other of such holders or to
obtain or to seek to obtain priority or preference over any other of such
holders or to enforce any right under such Trust Agreement, except in the manner
herein provided and for the equal and ratable benefit of all such holders.
Notwithstanding the foregoing, a holder of Trust Preferred Securities of such
Trust may institute a proceeding directly against us without first instituting a
legal proceeding against or requesting that action be taken by such Property
Trustee or any other Person for enforcement of payment to such holder of the
principal of or interest on the Subordinated Debentures held by such Trust
having a principal amount equal to the aggregate stated liquidation amount of
such Trust Preferred Securities of such holder (a "Direct Action") on or after
the due dates specified or provided for in such Subordinated Debentures. In
connection with such Direct Action, we will be subrogated to the rights of such
holder of Trust Preferred Securities under the Trust Agreement to the extent of
any payment made by us to such holder of Trust Preferred Securities in such
Direct Action.
DESCRIPTION OF TRUST GUARANTEES
The following is a summary of information concerning the guarantees of the
trust preferred securities of each trust, which we refer to as the Trust
Guarantees. Each Trust Guarantee will be executed by us for the benefit of
holders of Trust Preferred Securities. Each Trust Guarantee will be qualified as
an indenture under the Trust Indenture Act. A Prospectus Supplement with respect
to the Trust Preferred Securities will identify the indenture trustee for
purposes of the Trust Indenture Act (the "Trust Guarantee Trustee").
The following summary does not purport to be complete and is subject in all
respects to the provisions of, and is qualified by its entirety by reference to,
the form of Trust Guarantee, which is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. The Trust Guarantee will be
held by the Property Trustee for the benefit of holders of Trust Preferred
Securities.
GENERAL
To the extent set forth in the Trust Guarantee, we will agree to pay in
full the Guarantee Payments, described below, without duplication of amounts
theretofore paid by or on behalf of the Trust, as and when due regardless of
defense, right of set off or counter-claim which we may have. The following
payments or distributions are referred to herein as the Guarantee Payments and,
with respect to trust preferred securities issued by a trust, to the extent not
paid or made by such trust will be subject to the Trust Guarantee:
(i) any accrued and unpaid distributions on Trust Preferred
Securities, to the extent such Trust has funds legally and immediately
available therefor;
(ii) the redemption price (the "Redemption Price"), to the extent such
Trust has funds legally and immediately available therefor with respect to
Trust Preferred Securities called for redemption; and
(iii) upon voluntary or involuntary termination, dissolution or
winding up of such Trust (other than in connection with the distribution of
Subordinated Debentures to holders of Trust Preferred Securities or the
redemption of all Trust Preferred Securities), the lesser of:
(a) the aggregate of the liquidation amount and all accrued and
unpaid distributions on such Trust Preferred Securities to the date of
payment, to the extent such Trust has funds legally and immediately
available therefor and
(b) the amount of assets of the Trust remaining available for
distribution to holders of Trust Preferred Securities in liquidation of
the Trust.
The redemption price and liquidation amount will be fixed at the time the
Trust Preferred Securities are issued. Our obligation to make a Guarantee
Payment may be satisfied by direct payment of the
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required amounts by us to the holders of such Trust Preferred Securities or by
causing the Trust to pay such amounts to such holders.
Each Trust Guarantee will not apply to any payment or distribution except
to the extent such Trust has funds legally available therefor. If we do not make
interest payments on the Subordinated Debentures purchased by a Trust, such
Trust will not pay distributions on such Trust Preferred Securities issued by
such Trust and will not have funds legally available therefor. The Trust
Guarantee, when taken together with our obligations under the Subordinated
Debentures, the Subordinated Indenture and the Trust Agreement, including our
obligation to pay costs, expenses, debt, and liabilities of such Trust (other
than with respect to the Trust Securities), will be a full and unconditional
guarantee, on a subordinated basis, by us of payments due on the Trust Preferred
Securities from the time of issuance, but will not apply to the payment of
distributions and other payments on the Trust Preferred Securities when the
Property Trustee does not have sufficient funds in the Property Account of the
Trust to make such distributions or other payments. If we do not make interest
payments on the Subordinated Debentures held by the Property Trustee, the Trust
will not make distributions on the Trust Preferred Securities and will not have
funds available therefor. See "Additional Description of the Subordinated
Debentures to be Issued to Trust -- Certain Covenants."
AMENDMENT OF TRUST GUARANTEE; ASSIGNMENT
Except for changes which do not materially adversely affect the rights of
holders of Trust Preferred Securities, each Trust Guarantee may be amended only
with the approval of not less than 66 2/3% in liquidation amount of Trust
Preferred Securities issued by the applicable Trust. The manner of obtaining any
such approval will be as set forth in Article Six of the applicable Trust
Agreement. The Trust Guarantee will bind the successors, assigns receivers,
trustees and representatives of us and continue to benefit the Trust Guarantee
Trustee and holders of Trust Preferred Securities. Except in connection with a
consolidation, merger, conveyance, transfer or lease involving us, permitted
under Article Eight of the Subordinated Indenture, we may not assign its rights
or delegate our obligations under the Trust Guarantee.
TERMINATION OF THE TRUST GUARANTEE
Each Trust Guarantee will terminate as to the Trust Preferred Securities
issued by the applicable Trust (a) upon full payment of the Redemption Price of
all Trust Preferred Securities of such trust, (b) upon distribution of
Subordinated Debentures held by such Trust to the holders of and in exchange for
Trust Preferred Securities or (c) upon full payment of amounts payable in
accordance with the Trust Agreement upon liquidation of such Trust. See "Status
of the Trust Guarantee" and "Additional Description of Subordinated Debentures
to be Issued to Trust -- Subordinated Indenture Additional Events of Default"
for a description of the events of default and enforcement rights of the holders
of Subordinated Debentures. The Trust Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any holder of Trust
Preferred Securities must repay any sums paid to them under the Trust Preferred
Securities or Trust Guarantee.
EVENTS OF DEFAULT
An event of default under a Trust Guarantee will occur if we fail to make
the payments required by the Trust Guarantee.
The holders of a majority in liquidation amount of Trust Preferred
Securities relating to such Trust Guarantee have the right to direct the time,
method and place of conducting any proceeding for any remedy available to such
Trust Guarantee Trustee or to direct the exercise of any trust or power
conferred upon such Trust Guarantee Trustee under the Trust Guarantee. If the
Trust Guarantee Trustee fails to enforce such Trust Guarantee, any holder of
record of Trust Preferred Securities relating to such Trust Preferred Guarantee
may institute a legal proceeding directly against us to enforce the Trust
Guarantee Trustee's rights, without first instituting any other legal
proceeding.
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STATUS OF TRUST GUARANTEE
The Trust Guarantee will constitute our unsecured obligation and will rank:
(i) subordinate and junior in right of payment to all of our other
liabilities, including the Subordinated Debentures, except those made pari
passu or subordinate by their terms,
(ii) pari passu with the most senior preferred or preference stock
which may now or hereafter be issued or guaranteed by us; and
(iii) senior to our Common Stock.
The terms of the Trust Preferred Securities provide that each holder of
Trust Preferred Securities issued by such trust, by acceptance thereof, agrees
to the subordination provisions and other terms of the Trust Guarantee relating
thereto. Each Trust Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding directly
against the guarantor to enforce its rights under such Trust Guarantee without
instituting a legal proceeding against any other person or entity). Each Trust
Guarantee will be deposited with the applicable Guarantee Trustee to be held for
the benefit of the holders of such Trust Preferred Securities. Except as
otherwise noted herein, the Guarantee Trustee has the right to enforce the Trust
Guarantee on behalf of the holders of the related Trust Preferred Securities.
Except as described under "Termination of the Trust Guarantee" above, the Trust
Guarantee will not be discharged except by payment of the Guarantee Payments in
full (without duplication of amounts theretofore paid by the Trust).
INFORMATION CONCERNING TRUST GUARANTEE TRUSTEE
The Trust Guarantee Trustee, prior to the occurrence of a default with
respect to the Trust Guarantee and after the curing of all such defaults that
may have occurred, undertakes to perform only such duties as are specifically
set forth in the Trust Guarantee and, during the continuance of any default,
will exercise the same degree of care as a prudent individual would exercise in
the conduct of such individual's own affairs. Subject to such provisions, the
Trust Guarantee Trustee is under no obligation to exercise any of the powers
vested in it by the Trust Guarantee at the request of any holder of Trust
Preferred Securities, unless offered reasonable indemnity against the costs,
expenses and liabilities which might be incurred thereby; but the foregoing
shall not relieve the Trust Guarantee Trustee, upon the occurrence of an Event
of Default under such Trust Guarantee, from exercising the rights and powers
vested in it by such Trust Guarantee. The Trust Guarantee Trustee also serves as
Property Trustee. We and our officers and directors have no material
relationship with the initial Trust Guarantee Trustee other than normal banking
relationships.
GOVERNING LAW
The Trust Guarantee will be governed by the laws of the State of New York.
THE AGREEMENT AS TO EXPENSES AND LIABILITIES
Pursuant to an Agreement as to Expenses and Liabilities to be entered into
by us under the Trust Agreement, we will irrevocably and unconditionally
guarantee to each person or entity to whom the Trust becomes indebted or liable
the full payment of any indebtedness, expenses or liabilities of the Trust other
than obligations of the Trust to pay to the holders of the related Trust
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of such Trust Securities or such other similar interests,
as the case may be.
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ADDITIONAL DESCRIPTION OF SUBORDINATED DEBENTURES
TO BE ISSUED TO TRUST
Set forth below is a description of the terms of the Subordinated
Debentures which each Trust will hold as trust assets. The general provisions of
the Subordinated Debentures are set forth under "Description of Debt Securities"
above. The following description does not purport to be complete and is subject
to, and is qualified in its entirety by reference to, the Subordinated Indenture
(as defined in "Description of Debt Securities" above), as supplemented by the
Supplemental Indenture creating the Subordinated Debentures. The Subordinated
Indenture and the form of Supplemental Indenture are filed as exhibits to the
Registration Statement of which this Prospectus forms a part. The terms of the
Subordinated Debentures will include those stated in the Subordinated Indenture
and the related Supplemental Indenture and those made a part of the Subordinated
Indenture by reference to the Trust Indenture Act.
Upon a dissolution of a Trust, Subordinated Debentures held by such Trust
may be distributed to the holders of Trust Securities in liquidation of such
Trust.
If any Subordinated Debentures are distributed to holders of Trust
Preferred Securities, we will use our best efforts to have such Subordinated
Debentures traded on the same stock exchange as the related Trust Preferred
Securities are traded.
GENERAL
Subordinated Debentures will be issued in a principal amount equal to the
aggregate stated Liquidation Amount of Trust Preferred Securities plus our
investment in Trust Common Securities.
The entire principal amount of the Subordinated Debentures held by each
Trust will mature and become due and payable, together with any accrued and
unpaid interest thereon, including Additional Interest (as defined herein), if
any, on the date set forth in the applicable Prospectus Supplement.
The covenants contained in the Subordinated Debenture Indenture would not
necessarily afford protection to holders of the Subordinated Debentures in the
event of a decline in our credit quality resulting from takeovers,
recapitalizations or similar restructurings.
If Subordinated Debentures held by a Trust are distributed to holders of
Trust Preferred Securities of such Trust in liquidation of such holders'
interests in such Trust, such Subordinated Debentures will initially be issued
as a Global Security. Under certain limited circumstances, Subordinated
Debentures may be issued in certificated form in exchange for a Global Security.
In the event Subordinated Debentures are issued in certificated form, such
Subordinated Debentures will be in denominations as specified in the applicable
Prospectus Supplement and integral multiples thereof and may be transferred or
exchanged at the offices described therein. Payments on Subordinated Debentures
issued as a Global Security will be made to the Depositary for the Subordinated
Debentures. In the event Subordinated Debentures are issued in certificated
form, principal and interest will be payable, the transfer of the Subordinated
Debentures will be registrable and Subordinated Debentures will be exchangeable
for Subordinated Debentures of other denominations of a like aggregate principal
amount at the corporate trust office of the Debt Trustee in New York, New York;
provided, that payment of interest may be made at our option by check mailed to
the address of the persons entitled thereto.
The Indenture does not contain provisions that afford holders of the
Subordinated Debentures protection in the event we are involved in a highly
leveraged transaction.
CERTAIN COVENANTS
If (i) there has occurred any event that would constitute an Indenture
Event of Default or (ii) we are in default with respect to our payment of any
obligations under the Trust Guarantee, then (a) we may not declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase or make
a liquidation payment with respect to, any of our capital stock (other than (i)
purchases or acquisitions of
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shares of our common stock in connection with the satisfaction by us of our
obligations under any employee benefit plans or any other contractual obligation
of ours (other than a contractual obligation ranking pari passu with or junior
to the Subordinated Debentures), (ii) as a result of a reclassification of our
capital stock or the exchange or conversion of one class or series of our
capital stock for another class or series of our capital stock, or (iii) the
purchase of fractional interests in shares of our capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged), (b) we may not make any payment of interest, principal
or premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees) issued by us which rank pari passu with or junior to the
Subordinated Debentures, and (c) we may not make any guarantee payments with
respect to the foregoing (other than pursuant to the Trust Guarantee).
We will covenant, as long as Trust Preferred Securities of a Trust remain
outstanding, (i) to maintain 100% ownership of Trust Common Securities of such
Trust, (ii) to not cause such Trust to terminate, except in connection with a
distribution of Subordinated Debentures and (iii) to use its reasonable efforts
to cause such Trust (a) to remain a statutory business trust, except in
connection with the distribution of Subordinated Debentures held by such Trust
to the holders of Trust Securities in liquidation of such Trust, the redemption
of all Trust Securities, or certain mergers, consolidations or amalgamations,
each as permitted by the Trust Agreement, and (b) to otherwise continue to be
classified as a grantor trust for United States federal income tax purposes.
OPTIONAL REDEMPTION
We will have the right to redeem the Subordinated Debentures, in whole or
in part, from time to time, without premium or penalty, on or after the date set
forth in the applicable Prospectus Supplement, upon not less than thirty (30) or
more than sixty (60) days' notice, at a redemption price equal to a percentage
of the principal amount to be redeemed plus any accrued and unpaid interest,
including Additional Interest (as defined herein), if any, to the Redemption
Date, as specified in the applicable Prospectus Supplement. If a partial
redemption of the Trust Preferred Securities resulting from a partial redemption
of the Subordinated Debentures held by a trust would result in the delisting of
the Trust Preferred Securities of such Trust, we may only redeem such
Subordinated Debentures held by such trust in whole. In addition, upon the
occurrence of a Special Event, we may, upon not less than thirty (30) or more
than (60) days notice, within ninety (90) days following the occurrence thereof
and subject to the terms and conditions of the Subordinated Indenture, redeem
such Subordinated Debentures, in whole, at a price equal to 100% of the
principal amount to be redeemed plus any accrued but unpaid interest (including
Additional Interest, if any) to the Redemption Date. In the event of redemption
of such Subordinated Debentures in part only, new Subordinated Debentures for
the unredeemed portion shall be issued in the name or names of the holders
thereof upon the surrender thereof.
INTEREST
Each Subordinated Debenture will bear interest at the rate set forth in the
applicable Prospectus Supplement from the original date of issuance, payable
quarterly in arrears on dates which will be specified in the Prospectus
Supplement (each, an "Interest Payment Date"), to the person in whose name such
Subordinated Debenture is registered, subject to certain exceptions, on the
record date specified in the applicable Prospectus Supplement.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Subordinated Debentures is not a Business Day, then
payment of the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
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OPTION TO EXTEND INTEREST PAYMENT PERIOD
Except to the extent set forth in the applicable Prospectus Supplement, we
will have the right at any time to defer payments of interest on Subordinated
Debentures by extending the interest payment period for up to 20 consecutive
quarters. At the end of such an Extension Period, we will pay all interest then
accrued and unpaid (including any Additional Interest, together with interest
thereon at the rate specified and to the extent permitted by applicable law). We
covenant in the Supplemental Indenture for the benefit of the holders of a
series of Subordinated Debentures, that, subject to the next succeeding
sentence, (a) we shall not declare or pay any dividend on, or make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of our capital stock, and (b) we shall
not make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees other than the
Trust Guarantee) issued by us which rank pari passu with or junior to said
series of Subordinated Debentures (i) if at such time we shall have given notice
of our election to extend an interest payment period for a series of
Subordinated Debentures and such extension shall be continuing or (ii) if at
such time an Event of Default with respect to a series of Subordinated
Debentures shall have occurred and be continuing. The preceding sentence,
however, shall not restrict (A) any of the actions described in the preceding
sentence resulting from any reclassification of our capital stock or the
exchange or conversion of one class or series of our capital stock for another
class or series of our capital stock, (B) repurchases, redemptions or other
acquisitions of shares of our capital stock in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit of
employees, officers or directors or a stock purchase and dividend reinvestment
plan, and (C) dividends or distributions in our capital stock, or (D) the
purchase of fractional interests in shares of our capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged.
Prior to the termination of any such Extension Period for a series of
Subordinated Debentures, we may further defer payments of interest on such
Subordinated Debentures, by extending the interest payment period, provided that
such Extension Period together with all such previous and further extensions
thereof for such series of Subordinated Debentures may not exceed 20 consecutive
quarters or extend beyond the maturity of such series of Subordinated
Debentures.
Upon the termination of any Extension Period for a series of Subordinated
Debentures, and the payment of all accrued and unpaid interest on the
Subordinated Debentures then due, we may select a new Extension Period for such
series of Subordinated Debentures, as if no Extension Period had previously been
declared, subject to the above requirements. No interest on a series of
Subordinated Debentures during an Extension Period, except at the end thereof,
will be due and payable on such series of Subordinated Debentures.
If the Property Trustee is the sole holder of the Subordinated Debentures,
we will give the Regular Trustees and the Property Trustee notice of our
selection of such Extension Period for such series of Subordinated Debentures
one Business Day prior to the earlier of (i) the next succeeding date on which
distributions on the related Trust Preferred Securities are payable or (ii) the
date a Trust is required to give notice to the NASDAQ or other applicable
self-regulatory organization or to holders of such Trust Preferred Securities on
the record date or the date such distribution is payable, but in any event not
less than one Business Day prior to such record date. The Regular Trustees shall
give notice of our selection of such Extension Period to the holders of such
Trust Preferred Securities. If the Property Trustee is not the sole holder of a
series of Subordinated Debentures, we will give the holders of such Subordinated
Debentures notice of our selection of such Extension Period ten Business Days
prior to the earlier of (i) the Interest Payment Date or (ii) the date we are
required to give notice to the NASDAQ or other applicable self-regulatory
organization or to holders of such Subordinated Debentures, but in any event at
least two Business Days before such record date.
We have no present intention to defer interest payments.
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ADDITIONAL INTEREST
If a Trust is required to pay any taxes, duties, assessments or other
governmental charges (other than withholding taxes) imposed by the United
States, or any other taxing authority, we will pay as additional interest
("Additional Interest") such additional amounts as shall be required so that the
net amounts received and retained by a Trust after paying any such charges will
be equal to the amount such Trust would have received had no such charge been
imposed.
SUBORDINATED INDENTURE ADDITIONAL EVENTS OF DEFAULT
In addition to the Events of Default described under "Description of Debt
Securities -- Events of Default," the following will be an additional Event of
Default:
(a) the voluntary or involuntary dissolution, winding up or
termination of a Trust except in connection with
(i) the distribution of Subordinated Debentures to holders of Trust
Securities in liquidation of a Trust,
(ii) the redemption of all outstanding Trust Securities of such
Trust, or
(iii) certain mergers or consolidations permitted by the Trust
Agreement.
The holders of not less than a majority in aggregate principal amount of
Subordinated Debentures may waive any past default, except (i) a default in
payment of principal, premium, interest or Additional Interest (unless such
default has been cured and a sum sufficient to pay all installments due
otherwise than by acceleration has been deposited with the Subordinated
Debenture Trustee) or (ii) a default in a covenant or provision which under
Article Nine of the Subordinated Indenture may not be modified or amended
without the consent or each holder of a Subordinate Debenture. The holders of
Trust Preferred Securities in certain circumstances have the right to direct the
Property Trustee to exercise its rights as holder of Subordinated Debentures.
PAYMENT AND PAYING AGENTS
Payment of principal and premium (if any) on Subordinated Debentures will
be made only if the holder of Subordinated Debentures surrenders them to the
Paying Agent of the Subordinated Debentures.
Principal of and any premium and interest, if any, on Subordinated
Debentures will be payable, subject to any applicable laws and regulations, at
the office of such Paying Agent or Paying Agents as we may designate from time
to time pursuant to the Subordinated Debenture Indenture. Payment of interest on
the Subordinated Debentures on any Interest Payment Date will be made to the
person in whose name the Subordinated Debenture (or predecessor security) is
registered at the close of business on the Regular Record Date for such interest
payment.
The Subordinated Indenture Trustee will act as Paying Agent with respect to
the Subordinated Debentures. We may at any time designate additional Paying
Agents or rescind the designation of any Paying Agent or approve a change in the
office through which any Paying Agent acts, except that we will be required to
maintain a Paying Agent at the place of payment.
CONSOLIDATION, MERGER AND SALE
The Subordinated Indenture provides that we will be permitted to
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into, any other entity provided that (a) either we
shall be the continuing entity, or the successor entity (if other than us)
formed by or resulting from any such consolidation or merger or which shall have
received the transfer of such assets shall expressly assume our obligations
under the Trust Guarantee and the payment of the principal of (and premium, if
any) and interest on all of the Subordinated Debentures and the due and punctual
performance and observance of all of the covenants and conditions contained in
the Subordinated
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Indenture; (b) immediately after giving effect to such transaction and treating
any indebtedness that becomes an obligation ours or any Subsidiary as a result
thereof as having been incurred by us or such Subsidiary at the time of such
transaction, no Event of Default under the Subordinated Indenture or the Trust
Guarantee, and no event which, after notice or the lapse of time, or both, would
become such an Event of Default, shall have occurred and be continuing; and (c)
an officer's certificate and legal opinion covering such conditions shall be
delivered to the Indenture Trustee (Sections 801 and 803 of the Subordinated
Indenture).
INFORMATION CONCERNING SUBORDINATED DEBENTURE TRUSTEE
The Subordinated Indenture Trustee, prior to default and after the curing
of all defaults, if any, undertakes to perform only such duties as are
specifically set forth in the Subordinated Indenture and, after a default (that
has not been cured or waived), will exercise the same degree of care as a
prudent individual would exercise in the conduct of his or her own affairs.
Subject to such provision, the Subordinated Indenture Trustee is under no
obligation to exercise any of the powers vested in it by the Subordinated
Indenture at the request of any holder of Subordinated Indentures, unless
offered reasonable indemnity by such holder against the costs, expenses and
liabilities which might be incurred thereby; but the foregoing will not relieve
the Subordinated Indenture Trustee, upon the occurrence of an Indenture Event of
Default, from exercising the rights and powers vested in it by the Subordinated
Indenture. The Subordinated Indenture Trustee is not required to expend or risk
its own funds or otherwise incur personal financial liability in the performance
of its duties if the Subordinated Indenture Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
MISCELLANEOUS
We will have the right at all times to assign any of our rights or
obligations under the Subordinated Indenture to a direct or indirect
wholly-owned subsidiary of ours; provided that, in the event of any such
assignment, we will remain liable for all of such obligations. Subject to the
foregoing, the Subordinated Indenture will be binding upon and inure to the
benefit of the parties thereto and their respective successors and assigns. The
Subordinated Indenture provides that it may not otherwise be assigned by the
parties thereto.
EFFECT OF OBLIGATIONS UNDER SUBORDINATED DEBENTURES
AND TRUST PREFERRED SECURITIES GUARANTEE
As long as payments are made when due on Subordinated Debentures, the Trust
will have sufficient funds to be able to make all appropriate payments on Trust
Securities. This is primarily because (i) the aggregate principal amount of the
Subordinated Debentures will be equal to the sum of the aggregate stated
liquidation amount of such Trust Securities; (ii) the interest rate and interest
and other payment dates on the Subordinated Debentures will match the
distribution rate and distribution and other payment dates for the Trust
Securities; (iii) we will pay for all costs and expenses of each Trust; and (iv)
the Trust Agreement provides that the Trustees may not cause or permit the Trust
to, among other things, engage in any activity that is not consistent with the
purposes of the Trust.
Payments of distributions and other payments due on the Trust Preferred
Securities (to the extent funds are available therefor) are guaranteed by us to
the extent set forth under "Description of the Trust Guarantee." If we do not
make interest payments on Subordinated Debentures, it is expected that the Trust
will not have sufficient funds to pay distributions on its Trust Preferred
Securities. The Trust Guarantee is a full and unconditional guarantee, but does
not apply to any payment unless the Trust has sufficient funds for such payment.
If we fail to make payments on Subordinated Debentures when due (taking
into account any Extension Period), the Trust Agreement will provide a mechanism
whereby holders of Trust Preferred Securities may direct the Property Trustee to
enforce its rights, including proceeding directly against us. If the Property
Trustee fails to enforce its rights, a holder of Trust Preferred Securities may
sue us directly to
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enforce those rights, without first instituting legal proceedings against the
Trust, the Property Trustee or any other person or entity.
If we fail to make payments under the Trust Guarantee, the Trust Guarantee
provides a mechanism whereby the holders of Trust Preferred Securities may
direct the Trust Guarantee Trustee to enforce its rights. If the Trust Guarantee
Trustee fails to enforce its rights, any holder of Trust Preferred Securities
may institute a legal proceeding against us directly to enforce those rights
without first instituting legal proceedings against the Trust, the Trust
Guarantee Trustee or any other person or entity.
Pursuant to an Agreement as to Expenses and Liabilities to be entered into
by the Company under the Trust Agreement, we will irrevocably and
unconditionally guarantee to each person or entity to whom the Trust becomes
indebted or liable the full payment of any indebtedness, expenses or liabilities
of the Trust other than obligations of the Trust to pay to the holders of the
related Trust Securities or other similar interests in the Trust the amounts due
such holders pursuant to the terms of such Trust Securities or such other
similar interests, as the case may be.
The above mechanisms and obligations, taken together, are equivalent to a
full and unconditional guarantee by us of payments due on Trust Preferred
Securities to the extent of funds available to the Trust.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts obligating
holders to purchase from us, and us to sell to the holders, a specified number
of shares of common stock at a future date or dates, which we refer to herein as
"stock purchase contract." The consideration per share of common stock may be
fixed at the time stock purchase contracts are issued or may be determined by
reference to a specific formula set forth in the stock purchase contracts. The
stock purchase contracts may be issued separately, or as part of units
consisting of a stock purchase contract and debt securities, trust preferred
securities or debt obligations of third parties, including U.S. treasury
securities, securing the holders' obligations to purchase the common stock under
the stock purchase contracts, which we refer to herein as "stock purchase
units." The stock purchase contracts may require us to make periodic payments to
the holders of the stock purchase units or vice versa, and such payments may be
unsecured or prefunded on some basis. The stock purchase contracts may require
holders to secure their obligations thereunder in a specified manner.
The applicable prospectus supplement will describe the terms of any stock
purchase contracts or stock purchase units. The description in the prospectus
supplement will not necessarily be complete, and reference will be made to the
stock purchase contract, and, if applicable, collateral or depositary
arrangements, relating to such stock purchase contracts or stock purchase units.
Material United States federal income tax considerations applicable to the stock
purchase units and the stock purchase contracts will be discussed in the
prospectus supplement relating thereto.
PLAN OF DISTRIBUTION
We and the trusts may sell securities in any of three ways: (1) through
underwriters or dealers; (2) directly to a limited number of institutional
purchasers or to a single purchaser; or (3) through agents. Any such dealer or
agent, in addition to any underwriter, may be deemed to be an underwriter within
the meaning of the Securities Act of 1933, as amended. The terms of the offering
of the securities with respect to which this prospectus is being delivered will
be set forth in the applicable prospectus supplement and will include:
- the name or names of any underwriters, dealers or agents;
- the purchase price of such securities and the proceeds to us from such
sale;
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- any underwriting discounts and other items constituting underwriters'
compensation;
- the public offering price; and
- any discounts or concessions which may be allowed or reallowed or paid to
dealers and any securities exchanges on which the securities may be
listed.
If underwriters are used in the sale of securities, such securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more
underwriters acting alone. Unless otherwise set forth in the applicable
prospectus supplement, the obligations of the underwriters to purchase the
securities described in the applicable prospectus supplement will be subject to
certain conditions precedent, and the underwriters will be obligated to purchase
all such securities if any are so purchased by them. Any public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
The securities may be sold directly by us or the applicable trust or
through agents designated by us or the applicable trust from time to time. Any
agents involved in the offer or sale of the securities in respect of which this
prospectus is being delivered, and any commissions payable by us or the
applicable trust to such agents, will be set forth in the applicable prospectus
supplement. Unless otherwise indicated in the applicable prospectus supplement,
any such agent will be acting on a best efforts basis for the period of its
appointment.
If dealers are utilized in the sale of any securities, we or the applicable
trust will sell the securities to the dealers, as principals. Any dealer may
resell the securities to the public at varying prices to be determined by the
dealer at the time of resale. The name of any dealer and the terms of the
transaction will be set forth in the prospectus supplement with respect to the
securities being offered.
Securities may also be offered and sold, if so indicated in the applicable
prospectus supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms, which we refer to herein as the "remarketing firms,"
acting as principals for their own accounts or as our or a trust's agents, as
applicable. Any remarketing firm will be identified and the terms of its
agreement, if any, with us or the applicable trust and its compensation will be
described in the applicable prospectus supplement. Remarketing firms may be
deemed to be underwriters, as that term is defined in the Securities Act of
1933, as amended, in connection with the securities remarketed thereby.
If so indicated in the applicable prospectus supplement, we or the
applicable trust will authorize agents, underwriters or dealers to solicit
offers by certain specified institutions to purchase the securities to which
this prospectus and the applicable prospectus supplement relates from us or the
applicable trust at the public offering price set forth in the applicable
prospectus supplement, plus, if applicable, accrued interest, pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject only to those conditions set
forth in the applicable prospectus supplement, and the applicable prospectus
supplement will set forth the commission payable for solicitation of such
contracts.
Underwriters will not be obligated to make a market in any securities. No
assurance can be given regarding the activity of trading in, or liquidity of,
any securities.
Agents, dealers, underwriters and remarketing firms may be entitled, under
agreements entered into with us or the applicable trust (or both), to
indemnification by us or the applicable trust (or both) against certain civil
liabilities, including liabilities under the Securities Act of 1933, as amended,
or to contribution to payments they may be required to make in respect thereof.
Agents, dealers, underwriters and remarketing firms may be customers of, engage
in transactions with, or perform services for, us and/or the applicable trust in
the ordinary course of business
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Each series of securities will be a new issue and, other than the common
stock, which is listed on NASDAQ, will have no established trading market. We
may elect to list any series of securities on an exchange, and in the case of
the common stock, on any additional exchange, but, unless otherwise specified in
the applicable prospectus supplement, we shall not be obligated to do so. No
assurance can be given as to the liquidity of the trading market for any of the
securities.
Agents, underwriters, dealers and remarketing firms may be customers of,
engage in transactions with, or perform services for, us and our subsidiaries in
the ordinary course of business.
LEGAL MATTERS
The validity of the securities offered here and certain related matters
will be passed upon for us, and certain United Stated federal income taxation
matters will be passed upon for us and the Trusts by Dickinson Wright PLLC,
Detroit, Michigan. Certain matters of Delaware law relating to the validity of
the Trust Preferred Securities will be passed upon on behalf of the Trusts by
Richards, Layton & Finger, P.A., Wilmington, Delaware. Certain legal matters
will be passed upon for the Underwriters by Dewey Ballantine LLP, New York, New
York.
EXPERTS
The consolidated financial statements of SEMCO Energy, Inc. as of December
31, 1998 and 1997, and for the three years ended December 31, 1998, incorporated
by reference in this prospectus have been audited by Arthur Andersen LLP,
independent public accountants, and the pro forma statement of income for the
year ended December 31, 1998, incorporated by reference in this prospectus has
been examined by Arthur Andersen LLP, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
The consolidated financial statements of ENSTAR Natural Gas Company as of
December 31, 1998 and 1997, and for the three years ended December 31, 1998,
have been incorporated by reference in this prospectus in reliance upon the
report of KPMG LLP, independent certified public accountants, and upon the
authority of said firm as experts in accounting and auditing.
Our future Financial Statements and the reports thereon of Arthur Andersen
LLP also will be incorporated by reference in this prospectus in reliance upon
the authority of that firm as experts in giving those reports to the extent that
said firm has audited said Financial Statements and consented to the use of
their reports thereon.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following statement sets forth the estimated amounts of expenses, other
than underwriting discounts and commissions, to be borne by the Company in
connection with the distribution of the securities offered hereby:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $ 132,000
Printing Expenses........................................... 420,000
Accounting Fees and Expenses................................ 120,000
Legal Fees and Expenses..................................... 750,000
Trustee Fees and Expense.................................... 100,000
Miscellaneous Expenses...................................... 300,000
----------
Total Estimated Expenses.......................... $1,822,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Bylaws of the Company provide that directors and officers, former
directors and officers, their heirs, executors and administrators of the Company
are entitled to indemnification to the extent and under the circumstances
permitted by the Michigan Business Corporation Act ("MBCA") including, where
permitted and upon satisfaction of any undertaking required, advance of
expenses.
Through reference to the MBCA, the Company's Bylaws contain indemnification
provisions concerning third party actions as well as actions in the right of the
Company. The Bylaws, through reference to the MBCA, provide that the Company
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Company) by reason of the fact that he or she is or
was a director or officer of the Company, or is or was serving at the request of
the Company as a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, whether for profit or not, against expenses (including
attorneys' fees), judgments, penalties, fees and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such action,
suit or proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the Company
or its shareholders, and with respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct was unlawful.
With respect to derivative actions, the Bylaws, through the reference to
the MBCA, provide that the Company shall indemnify any person who was or is a
party to or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to procure a judgment
in its favor by reason of the fact that he or she is or was a director or
officer of the Company, or is or was serving at the request of the Company as a
director, officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection with the defense or settlement of such judgment or suit
if he or she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Company or its shareholders
and except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person has been found liable to the Company unless
and only to the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all relevant circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses, but such indemnification is
limited to reasonable expenses incurred.
II-1
<PAGE> 43
The MBCA provides for corporate power to purchase and maintain insurance on
behalf of directors and officers (including persons acting as a director,
officer, employee or agent of another business entity on behalf of the
corporation) against any liability due to such status, whether or not the
corporation would have power to indemnify such person against such liability.
The Company provides such insurance.
The Company's Articles of Incorporation provide that a director of the
Company shall not be personally liable to the Company or its shareholders for
monetary damages for breach of the director's fiduciary duty. However, it does
not eliminate or limit the liability of a director for any breach of a duty, act
or omission for which the elimination or limitation of liability is not
permitted by the MBCA, currently including, without limitation, the following:
(1) the amount of a financial benefit received by a director to which he or she
is not entitled; (2) intentional infliction of harm on the Company or its
shareholders; (3) illegal loans, distributions of dividends or assets, or stock
purchases as described in Section 551(1) of MBCA; and (4) an intentional
criminal act committed by the director.
The Trust Agreement provides that the Company shall indemnify the Trustees
against loss, damage, claim, liability or expense incurred without negligence,
willful misconduct or bad faith on their part, arising out of or in connection
with the acceptance or administration of the Trust Agreement, including the
costs and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their power or duties
hereunder.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF DOCUMENT
- ----------- -----------------------
<C> <S> <C>
*1.1 -- Form of Underwriting Agreement relating to Debt Securities
*1.2 -- Form of Underwriting Agreement relating to Equity Securities
*1.3 -- Form of Underwriting Agreement relating to Trust Preferred
Securities
3.1 -- Restated Articles of Incorporation of SEMCO Energy(a)
3.2 -- Bylaws of SEMCO Energy(b)
4.1 -- Indenture for Senior Debt Securities(c)
4.2 -- Form of Senior Debt Security (included in Exhibit 4.1 above)
4.3 -- Form of Indenture for Subordinated Debt Securities
4.4 -- Form of Subordinated Debt Securities (included in Exhibit
4.3 above)
4.5 -- Certificate of Trust for SEMCO Capital Trust I
4.6 -- Certificate of Trust for SEMCO Capital Trust II
4.7 -- Certificate of Trust for SEMCO Capital Trust III
4.8 -- Trust Agreement for SEMCO Capital Trust I
4.9 -- Trust Agreement for SEMCO Capital Trust II
4.10 -- Trust Agreement for SEMCO Capital Trust III
4.11 -- Form of amended and restated Trust Agreement of SEMCO
Capital Trust I
4.12 -- Form of amended and restated Trust Agreement of SEMCO
Capital Trust II
4.13 -- Form of amended and restated Trust Agreement of SEMCO
Capital Trust III
4.14 -- Form of Trust Preferred Security (included in Exhibits 4.11,
4.12 and 4.13 above)
4.15 -- Form of Trust Guarantee Agreement for SEMCO Capital Trust I
4.16 -- Form of Trust Guarantee Agreement for SEMCO Capital Trust II
4.17 -- Form of Trust Guarantee Agreement for SEMCO Capital Trust
III
4.18 -- Specimen of Common Stock Certificate(d)
*4.19 -- Specimen of Preferred Stock Certificate
*4.20 -- Form of Stock Purchase Agreement
*4.21 -- Form of Stock Purchase Unit
4.22 -- Shareholder's Rights Agreement dated as of April 16, 1997(e)
5.1 -- Opinion of Dickinson Wright PLLC
5.2 -- Opinion of Richards, Layton & Finger, P.A. relating to SEMCO
Capital Trust I, SEMCO Capital Trust II, and SEMCO Capital
Trust III
12 -- Statement relating to computation of ratios
</TABLE>
II-2
<PAGE> 44
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF DOCUMENT
- ----------- -----------------------
<C> <S> <C>
23.1 -- Consent of Dickinson Wright PLLC (included in Exhibit 5.1
above)
23.3 -- Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5.2 above)
23.4 -- Consent of Arthur Andersen LLP
23.5 -- Consent of KPMG LLP
24 -- Power of Attorney
25.1 -- Statement of Eligibility on Form T-1 Debt Securities
25.2 -- Statement of Eligibility on Form T-1 Guarantee of Preferred
Securities of SEMCO Capital Trust I
25.3 -- Statement of Eligibility on Form T-1 Guarantee of Preferred
Securities of SEMCO Capital Trust II
25.4 -- Statement of Eligibility on Form T-1 Guarantee of Preferred
Securities of SEMCO Capital Trust III
25.5 -- Statement of Eligibility on Form T-1 Preferred Securities of
SEMCO Capital Trust I
25.6 -- Statement of Eligibility on Form T-1 Preferred Securities of
SEMCO Capital Trust II
25.7 -- Statement of Eligibility on Form T-1 Preferred Securities of
SEMCO Capital Trust III
*27 -- Financial Data Schedule
</TABLE>
- ---------------
* To be filed as an exhibit to a Current Report on Form 8-K and incorporated
into this Registration Statement by reference.
(a) Articles of Incorporation as restated June 25, 1999, filed with form 10-Q
for the quarter ended June 30, 1999, File No. 0-8503 and incorporated
herein by reference with the same effect as if filed with this Registration
Statement.
(b) Filed with Form 10-Q for the quarter ended September 30, 1999, File No.
0-8503, and incorporated herein by reference with the same effect as if
filed with this Registration Statement.
(c) Filed with SEMCO's Registration Statement on Form S-3, Exhibit 4.3,
registration number 333-58715.
(d) Filed with SEMCO's Registration Statement on Form S-3, Exhibit 4.13,
Registration Number 333-58715.
(e) Filed March 6, 1997 as part of 1997 Proxy Statement, dated March 7, 1997,
File No. O-8503, and incorporated herein by reference with the same effect
as if filed with this Registration Statement.
II-3
<PAGE> 45
ITEM 17. UNDERTAKINGS.
Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, unless the information required to be included in
such post-effective amendment is contained in a periodic report filed with
or furnished to the Securities and Exchange Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 and incorporated by reference in this Registration Statement;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement, unless the information required to be included in
such post-effective amendment is contained in a periodic report filed with
or furnished to the Securities and Exchange Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 and incorporated by reference in this Registration Statement;
provided, however that any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of SEMCO Energy's Form 10-K pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(5) To provide to the underwriter (if any), at the closing of the sale of
Trust Preferred Securities, certificates representing Trust Preferred Securities
in such denominations and registered in such names as required by the
underwriter to permit prompt delivery to each purchaser.
(6) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
each Registrant pursuant to any charter provision, bylaw, contract, arrangement,
statute, or otherwise, each Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by a Registrant of expenses incurred or paid by a director, officer, or
controlling person of a Registrant in the successful defense of any such action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the affected Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent,
II-4
<PAGE> 46
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(7) That, for the purposes of determining any liability under the
Securities Act of 1933:
(i) The information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1)
or (4) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(ii) Each post-effective amendment that contains a form of prospectus
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-5
<PAGE> 47
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, SEMCO Energy,
Inc. certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this registration
statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Port Huron and State of Michigan, on
the 30th day of November, 1999.
SEMCO ENERGY, INC.
By: /s/ WILLIAM L. JOHNSON
----------------------------------
William L. Johnson
Chairman and C.E.O.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed below by the
following persons in the capacities indicated on November 30, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ WILLIAM L. JOHNSON Chairman and CEO (Director and Principal
- ----------------------------------------------------- Executive Officer)
William L. Johnson
/s/ SEBASTIAN COPPOLA Senior Vice President (Principal Financial and
- ----------------------------------------------------- Accounting Officer)
Sebastian Coppola
/s/ DANIEL A. BURKHARDT* Director
- -----------------------------------------------------
Daniel A. Burkhardt
/s/ EDWARD J. CURTIS* Director
- -----------------------------------------------------
Edward J. Curtis
/s/ JOHN T. FERRIS* Director
- -----------------------------------------------------
John T. Ferris
/s/ MICHAEL O. FRAZER* Director
- -----------------------------------------------------
Michael O. Frazer
/s/ HARVEY I. KLEIN* Director
- -----------------------------------------------------
Harvey I. Klein
/s/ MARCUS JACKSON* Director
- -----------------------------------------------------
Marcus Jackson
/s/ FREDERICK S. MOORE* Director
- -----------------------------------------------------
Frederick S. Moore
/s/ EDITH A. STOTLER* Director
- -----------------------------------------------------
Edith A. Stotler
</TABLE>
II-6
<PAGE> 48
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DONALD W. THOMASON* Director
- -----------------------------------------------------
Donald W. Thomason
*By: /s/ WILLIAM L. JOHNSON
------------------------------------------------
William L. Johnson, Attorney-in-fact
</TABLE>
II-7
<PAGE> 49
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the SEMCO
Capital Trust I has duly caused this registration statement or amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Port Huron and State of Michigan, on the 30th day of November, 1999.
SEMCO CAPITAL TRUST I
By: SEMCO Energy, Inc., as Depositor
By: /s/ WILLIAM L. JOHNSON
--------------------------------------
William L. Johnson
Chairman and C.E.O.
By: /s/ SEBASTIAN COPPOLA
--------------------------------------
Sebastian Coppola
Senior Vice President and Chief
Financial Officer
II-8
<PAGE> 50
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the SEMCO
Capital Trust II has duly caused this registration statement or amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Port Huron and State of Michigan, on the 30th day of November, 1999.
SEMCO CAPITAL TRUST II
By: SEMCO Energy, Inc., as Depositor
By: /s/ WILLIAM L. JOHNSON
--------------------------------------
William L. Johnson
Chairman and C.E.O.
By: /s/ SEBASTIAN COPPOLA
--------------------------------------
Sebastian Coppola
Senior Vice President and Chief
Financial Officer
II-9
<PAGE> 51
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the SEMCO
Capital Trust III has duly caused this registration statement or amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Port Huron and State of Michigan, on the 30th day of November, 1999.
SEMCO CAPITAL TRUST III
By SEMCO Energy, Inc., as Depositor
By: /s/ WILLIAM L. JOHNSON
----------------------------------
William L. Johnson
Chairman and C.E.O.
By: /s/ SEBASTIAN COPPOLA
----------------------------------
Sebastian Coppola
Senior Vice President and Chief
Financial Officer
II-10
<PAGE> 52
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF DOCUMENT
- ----------- -----------------------
<C> <S> <C>
*1.1 -- Form of Underwriting Agreement relating to Debt Securities
*1.2 -- Form of Underwriting Agreement relating to Equity Securities
*1.3 -- Form of Underwriting Agreement relating to Trust Preferred
Securities
3.1 -- Restated Articles of Incorporation of SEMCO Energy(a)
3.2 -- Bylaws of SEMCO Energy(b)
4.1 -- Indenture for Senior Debt Securities(c)
4.2 -- Form of Senior Debt Security (included in Exhibit 4.1 above)
4.3 -- Form of Indenture for Subordinated Debt Securities
4.4 -- Form of Subordinated Debt Securities (included in Exhibit
4.3 above)
4.5 -- Certificate of Trust for SEMCO Capital Trust I
4.6 -- Certificate of Trust for SEMCO Capital Trust II
4.7 -- Certificate of Trust for SEMCO Capital Trust III
4.8 -- Trust Agreement for SEMCO Capital Trust I
4.9 -- Trust Agreement for SEMCO Capital Trust II
4.10 -- Trust Agreement for SEMCO Capital Trust III
4.11 -- Form of amended and restated Trust Agreement of SEMCO
Capital Trust I
4.12 -- Form of amended and restated Trust Agreement of SEMCO
Capital Trust II
4.13 -- Form of amended and restated Trust Agreement of SEMCO
Capital Trust III
4.14 -- Form of Trust Preferred Security (included in Exhibits 4.11,
4.12 and 4.13 above)
4.15 -- Form of Trust Guarantee Agreement for SEMCO Capital Trust I
4.16 -- Form of Trust Guarantee Agreement for SEMCO Capital Trust II
4.17 -- Form of Trust Guarantee Agreement for SEMCO Capital Trust
III
4.18 -- Specimen of Common Stock Certificate(d)
*4.19 -- Specimen of Preferred Stock Certificate
*4.20 -- Form of Stock Purchase Agreement
*4.21 -- Form of Stock Purchase Unit
4.22 -- Shareholder's Rights Agreement dated as of April 16, 1997(e)
5.1 -- Opinion of Dickinson Wright PLLC
5.2 -- Opinion of Richards, Layton & Finger, P.A. relating to SEMCO
Capital Trust I, SEMCO Capital Trust II, and SEMCO Capital
Trust III
12 -- Statement relating to computation of ratios
23.1 -- Consent of Dickinson Wright PLLC (included in Exhibit 5.1
above)
23.3 -- Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5.2 above)
23.4 -- Consent of Arthur Andersen LLP
23.5 -- Consent of KPMG LLP
24 -- Power of Attorney
25.1 -- Statement of Eligibility on Form T-1 Debt Securities
25.2 -- Statement of Eligibility on Form T-1 Guarantee of Preferred
Securities of SEMCO Capital Trust I
25.3 -- Statement of Eligibility on Form T-1 Guarantee of Preferred
Securities of SEMCO Capital Trust II
25.4 -- Statement of Eligibility on Form T-1 Guarantee of Preferred
Securities of SEMCO Capital Trust III
25.5 -- Statement of Eligibility on Form T-1 Preferred Securities of
SEMCO Capital Trust I
25.6 -- Statement of Eligibility on Form T-1 Preferred Securities of
SEMCO Capital Trust II
25.7 -- Statement of Eligibility on Form T-1 Preferred Securities of
SEMCO Capital Trust III
*27 -- Financial Data Schedule
</TABLE>
- ---------------
* To be filed as an exhibit to a Current Report on Form 8-K and incorporated
into this Registration Statement by reference.
II-11
<PAGE> 53
(a) Articles of Incorporation as restated June 25, 1999, filed with form 10-Q
for the quarter ended June 30, 1999, File No. 0-8503 and incorporated
herein by reference with the same effect as if filed with this Registration
Statement.
(b) Filed with Form 10-Q for the quarter ended September 30, 1999, File No.
0-8503, and incorporated herein by reference with the same effect as if
filed with this Registration Statement.
(c) Filed with SEMCO's Registration Statement on Form S-3, Exhibit 4.3,
registration number 333-58715.
(d) Filed with SEMCO's Registration Statement on Form S-3, Exhibit 4.13,
Registration Number 333-58715.
(e) Filed March 6, 1997 as part of 1997 Proxy Statement, dated March 7, 1997,
File No. O-8503, and incorporated herein by reference with the same effect
as if filed with this Registration Statement.
II-12
<PAGE> 1
EXHIBIT 4.3
- --------------------------------------------------------------------------------
SEMCO ENERGY, INC.
TO
Bank One Trust Company, NA
Trustee
-------------------------
Indenture
Dated as of _______, 1999 Subordinated Debentures
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE........................................................................................................1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............................................................1
SECTION 101. DEFINITIONS.....................................................................................1
SECTION 102. COMPLIANCE CERTIFICATE AND OPINIONS.............................................................11
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE..........................................................11
SECTION 104. ACTS OF HOLDERS.................................................................................12
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY...........................................................14
SECTION 106. NOTICE TO HOLDERS; WAIVER.......................................................................14
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS........................................................15
SECTION 108. SUCCESSORS AND ASSIGNS..........................................................................15
SECTION 109. SEPARABILITY CLAUSE.............................................................................15
SECTION 110. BENEFITS OF INDENTURE...........................................................................15
SECTION 111. GOVERNING LAW...................................................................................15
SECTION 112. LEGAL HOLIDAYS..................................................................................15
SECTION 113. NO RECOURSE AGAINST OTHERS......................................................................16
ARTICLE TWO SECURITIES FORMS......................................................................................16
SECTION 201. FORMS OF SECURITIES.............................................................................16
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.................................................16
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM..............................................................17
ARTICLE THREE THE SECURITIES......................................................................................17
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES............................................................17
SECTION 302. DENOMINATIONS...................................................................................20
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..................................................21
SECTION 304. TEMPORARY SECURITIES............................................................................23
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.............................................25
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES................................................28
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED..................................................29
SECTION 308. PERSONS DEEMED OWNERS...........................................................................31
SECTION 309. CANCELLATION....................................................................................32
SECTION 310. COMPUTATION OF INTEREST.........................................................................32
ARTICLE FOUR SATISFACTION AND DISCHARGE...........................................................................32
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.........................................................32
SECTION 402. APPLICATION OF TRUST FUNDS......................................................................34
ARTICLE FIVE REMEDIES..............................................................................................34
SECTION 501. EVENTS OF DEFAULT...............................................................................34
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..............................................36
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.................................37
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM................................................................38
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR COUPONS..........................38
SECTION 506. APPLICATION OF MONEY COLLECTED..................................................................39
SECTION 507. LIMITATION ON SUITS.............................................................................39
SECTION 508. UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM,
IF ANY, INTEREST AND ADDITIONAL INTEREST........................................................40
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES..............................................................40
</TABLE>
*This Table of Contents does not constitute part of the Indenture or
have any bearing upon the interpretation of any of its terms and provisions.
i
<PAGE> 3
<TABLE>
<S> <C>
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE..................................................................40
SECTION 511. DELAY OR OMISSION NOT WAIVER....................................................................40
SECTION 512. CONTROL BY HOLDERS OF SECURITIES................................................................41
SECTION 513. WAIVER OF PAST DEFAULTS.........................................................................41
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS.........................................................41
SECTION 515. UNDERTAKINGS FOR COSTS..........................................................................42
ARTICLE SIX THE TRUSTEE............................................................................................42
SECTION 601. NOTICE OF DEFAULTS..............................................................................42
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.......................................................................42
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES..........................................44
SECTION 604. MAY HOLD SECURITIES.............................................................................44
SECTION 605. MONEY HELD IN TRUST............................................................................44
SECTION 606. COMPENSATION AND REIMBURSEMENT..................................................................44
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING INTERESTS..................................45
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...............................................45
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..........................................................46
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.....................................47
SECTION 611. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...............................................48
SECTION 612. APPOINTMENT OF AUTHENTICATING AGENT.............................................................48
ARTICLE SEVEN HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY....................................................50
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS....................................................50
SECTION 702. REPORTS BY TRUSTEE..............................................................................50
SECTION 703. REPORTS BY COMPANY..............................................................................50
SECTION 704. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESS OF HOLDERS.........................................51
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE...................................................51
SECTION 801. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES, LEASES AND
CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS.............................................51
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION......................................................52
SECTION 803. OFFICER'S CERTIFICATE AND OPINIONS OF COUNSEL...................................................52
ARTICLE NINE SUPPLEMENTAL INDENTURES..............................................................................52
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..............................................52
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.................................................54
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES............................................................55
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES...............................................................55
SECTION 905. CONFORMITY WITH TIA.............................................................................55
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES..............................................55
ARTICLE TEN COVENANTS..............................................................................................55
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, INTEREST AND ADDITIONAL
INTEREST.......................................................................................55
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY................................................................56
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST..............................................57
SECTION 1004. EXISTENCE......................................................................................58
SECTION 1005. MAINTENANCE OF PROPERTIES......................................................................58
SECTION 1006. INSURANCE......................................................................................59
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS..............................................................59
SECTION 1008. PROVISION OF FINANCIAL INFORMATION.............................................................59
SECTION 1009. STATEMENT AS TO COMPLIANCE.....................................................................59
SECTION 1010. ADDITIONAL INTEREST............................................................................59
SECTION 1011. LIMITATIONS ON LIENS...........................................................................60
SECTION 1012. LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS................................................62
SECTION 1013. WAIVER OF CERTAIN COVENANTS....................................................................63
SECTION 1014. COVENANTS REGARDING TRUST......................................................................63
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE ELEVEN REDEMPTION OF SECURITIES...........................................................................63
SECTION 1101. APPLICABILITY OF ARTICLE.......................................................................63
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE..........................................................64
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED..............................................64
SECTION 1104. NOTICE OF REDEMPTION...........................................................................64
SECTION 1105. DEPOSIT OF REDEMPTION PRICE....................................................................65
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE..........................................................66
SECTION 1107. SECURITIES REDEEMED IN PART....................................................................66
ARTICLE TWELVE SINKING FUNDS......................................................................................67
SECTION 1201. APPLICABILITY OF ARTICLE.......................................................................67
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES..........................................67
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUNDS.....................................................67
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS...............................................................68
SECTION 1301. APPLICABILITY OF ARTICLE.......................................................................68
SECTION 1302. REPAYMENT OF SECURITIES........................................................................68
SECTION 1303. EXERCISE OF OPTION.............................................................................68
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND PAYABLE.................................69
SECTION 1305. SECURITIES REPAID IN PART......................................................................70
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE...............................................................70
SECTION 1401. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT DEFEASANCE
OR COVENANT DEFEASANCE.........................................................................70
SECTION 1402. DEFEASANCE AND DISCHARGE.......................................................................70
SECTION 1403. COVENANT DEFEASANCE............................................................................71
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE................................................71
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATION TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.................................................................73
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES.................................................................73
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED......................................................73
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS.............................................................73
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETING............................................................74
SECTION 1504. QUORUM; ACTION.................................................................................74
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS............................75
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS................................................76
ARTICLE SIXTEEN SUBORDINATION......................................................................................76
SECTION 1601. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS..................................................76
SECTION 1602. PAYMENT OF PROCEEDS UPON DISSOLUTION, ETC......................................................77
SECTION 1603. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.................................................78
SECTION 1604. PAYMENT PERMITTED IF NO DEFAULT................................................................78
SECTION 1605. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS........................................78
SECTION 1606. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS....................................................78
SECTION 1607. TRUSTEE TO EFFECTUATE SUBORDINATION............................................................79
SECTION 1608. NO WAIVER OF SUBORDINATION PROVISIONS..........................................................79
SECTION 1609. TRUST MONEYS NOT SUBORDINATED..................................................................80
SECTION 1610. NOTICE TO THE TRUSTEE..........................................................................80
SECTION 1611. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.................................80
SECTION 1612. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.......................................81
SECTION 1613. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS PRESERVATION
OF TRUSTEE'S RIGHTS............................................................................81
SECTION 1614. ARTICLE APPLICABLE TO PAYING AGENTS............................................................81
SECTION 1615. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION PROVISIONS.........................81
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
ARTICLE SEVENTEEN MISCELLANEOUS PROVISIONS........................................................................82
SECTION 1701. ASSIGNMENT; BINDING EFFECT.....................................................................82
SECTION 1702. ADDITIONAL INTEREST............................................................................82
</TABLE>
EXHIBITS:
EXHIBIT A-1 FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE
EXCHANGE DATE
EXHIBIT A-2 FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR AND CEDEL S.A. IN CONNECTION WITH
THE EXCHANGE OF A PORTION OF A TEMPORARY
GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
iv
<PAGE> 6
SEMCO ENERGY, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 (the "1939 Act") and Indenture, dated as of
______ _, 1999
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C> <C>
(S) 310(a)(1)................................................607
(a)(2)...................................................607
(a)(3)........................................Not Applicable
(a)(4)........................................Not Applicable
(b)..............................................604,607,608
(S) 311(a)...................................................611
311(b)(4)................................................611
(b)(6)...................................................611
(S) 312(a)...................................................704
(b)......................................................701
(c)......................................................702
(S) 313(a)...................................................702
313(b)...................................................703
313(c)...............................................702,703
(d)......................................................703
(S) 314(a)..............................................703,1009
(a)(4)..................................................1009
(b)...........................................Not Applicable
(c)(1)...................................................102
(c)(2)...................................................102
(c)(3)........................................Not Applicable
(d)...........................................Not Applicable
(e)......................................................102
(S) 315(a)...................................................602
(b)60....................................................601
(c)......................................................602
(d)......................................................602
(d)(1)...................................................602
(d)(2)...................................................602
(d)(3)...................................................602
(e)..................................................515,608
(S) 316(a)...................................................101
</TABLE>
v
<PAGE> 7
<TABLE>
<S> <C> <C>
(a)(1)(A)...........................................502, 512
(a)(1)(B)................................................513
(a)(2)........................................Not Applicable
(b)......................................................508
(S) 317(a)(1)................................................503
(a)(2)...................................................504
(b).....................................................1003
(S) 318(a)...................................................111
(c)......................................................111
</TABLE>
- ------------------
NOTE: This reconciliation and tie shall not, for any juries, be
deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act, which
provides that the provisions of Sections 310 to and including 317 of the 1939
Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
vi
<PAGE> 8
INDENTURE, dated as of _____ _, 1999, between SEMCO ENERGY,
INC., a corporation organized under the laws of Michigan (hereinafter called the
"Company"), having its principal office at 405 Water Street, Port Huron,
Michigan 48060 and BANK ONE TRUST COMPANY, NA, a national banking association,
as Trustee hereunder (hereinafter called the "Trustee"), having its Corporate
Trust Office at 611 Woodward Avenue, Detroit, Michigan 48226.
RECITALS OF THE TRUST
The Company deems it necessary to issue from time to time for
its lawful purposes subordinated debentures (hereinafter called the
"Securities") evidencing its unsecured and subordinated indebtedness, and has
duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to principal amount,
to bear interest at the rates or formulas, to mature at such times and to have
such other provisions as shall be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended ("TIA"), that are deemed to be incorporated
into this Indenture and shall, to the extent applicable, be governed by such
provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the holders thereof ("Holders"), it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions . For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have
meanings assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
<PAGE> 9
Certain terms, used principally in Article Three, Article
Five, Article Six and Article Ten, are defined in those Articles. In addition,
the following terms shall have the indicated respective meanings:
"Acquired Debt" means Debt of a Person (i) existing at the
time such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Debt incurred
in connection with, or in contemplation of, such Person becoming a Subsidiary or
such acquisition. Acquired Debt shall be deemed to be incurred on the date of
the related acquisition of assets from any Person or the date the acquired
Person becomes a Subsidiary.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Interest" means (i) such additional amounts as may
be required so that the net amounts received and retained by the Holder (if the
Holder is the Securities Trust) after paying taxes, duties, assessments, or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States or any other taxing authority will not be less than the
amounts the Holder would have received had not such taxes, duties, assessments,
or other governmental charges been imposed; and (ii) such interest as shall
accrue on interest due and not paid on an Interest Payment Date, accruing at the
rate specified for such series in accordance with the terms hereof from the
applicable Interest Payment Date to the date of payment, compounded quarterly,
on each Interest Payment Date, to the extent permitted by applicable law.
"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.
"Annual Service Charge" as of any date means the maximum
amount which is payable in any period for interest on, and original issue
discount of, Debt of the Company and its Subsidiaries.
"Attributable Debt" means, in respect of a Sale and Lease-Back
Transaction, as at the time of determination, the present value (discounted at
the rate borne by the applicable series of Securities) of the total obligations
of the lessee for rental payments during the remaining term of the lease
included in such Sale and Lease-Back Transaction (including any period for which
such lease has been extended).
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 612.
"Authorized Newspaper"means a newspaper, printed in the
English language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each
2
<PAGE> 10
place in connection with which the term is used or in the financial community of
each such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in
different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means the board of Directors of the
Company, the executive committee or any committee of that board duly authorized
to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in that Place of
Payment or particular location are authorized or required by law, regulation or
executive order to close.
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible or exchangeable for corporate stock), warrants
or options to purchase any thereof.
"CEDEL" means Central de Livraison de Valeurs Mobilieres,
S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after 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 on such date.
"Common Shares" means, with respect to any Person, capital
stock issued by such Person other than Preferred Shares.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the President,
any Vice President, Secretary or Treasurer of the Company, and delivered to the
Trustee.
3
<PAGE> 11
"Consolidated Net Tangible Assets" shall mean the total of all
assets (including revaluations thereof as a result of commercial appraisals,
price level restatement or otherwise) appearing on a consolidated balance sheet
of the Company, net of applicable reserves and deductions, but excluding
goodwill, trade names, trademarks, patents, unamortized debt discount and all
other like intangible assets (which term shall not be construed to include such
revaluations), less the aggregate of the consolidated current liabilities of the
Company appearing on such balance sheet.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 611 Woodward Avenue,
Detroit Michigan 48226.
"Corporation" includes corporations, associations,
partnerships, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Company or a Subsidiary means any indebtedness
of the Trust or a Subsidiary, whether or not contingent, in respect of (without
duplication) (i) borrowed money evidenced by bonds, notes, debentures or similar
instruments, (ii) indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned by the Company
or any Subsidiary, (iii) the reimbursement obligations, contingent or otherwise,
in connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations or obligations under any title
retention agreement, (iv) the principal amount of all obligations of the Company
or any Subsidiary with respect to redemption, repayment or other repurchase of
any disqualified stock or (v) any lease of property by the Company or any
Subsidiary as lessee which is reflected on the Company's consolidated balance
sheet as a capitalized lease in accordance with GAAP to the extent, in the case
of items of indebtedness under (i) through (iii) above, that any such items
(other than letters of credit) would appear as a liability on the Company's
consolidated balance sheet in accordance with GAAP, and also includes, to the
extent not otherwise included, any obligation by the Company or any Subsidiary
to be liable for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business), Debt of another
Person (other than the Company or any Subsidiary).
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"DTC" means The Depository Trust Company.
4
<PAGE> 12
"Encumbrance" means any mortgage, security interest, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other) or preference, priority or other security agreement except:
(a)......liens for taxes and other governmental assessments,
including utility charges and vault rentals, (i) which are not yet delinquent,
(ii) which are not in an aggregate amount, as to the Company and its
Subsidiaries, greater than 10% of Total Assets or (iii) which are being
contested in good faith by all appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the Company or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b)......carriers, warehousemen's, mechanic's, materialmen's,
repairmen's, brokers' or other like liens (i) which are not in an aggregate
amount, as to the Company and its Subsidiaries, greater than 10% of Total
Assets, (ii) which do not remain unsatisfied or undischarged for a period of
more than 90 days or (iii) which are being contested in good faith by all
appropriate proceedings;
(c) pledges or deposits in connection with workers
compensation, unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds performance bonds and other obligations of a like nature
incurred in the ordinary course of business; and
(e) easements, rights of way, restrictions, development
orders, plats and other similar encumbrances.
"Euroclear" means Morgan Guaranty Trust of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by the Commission.
"GAAP" means generally accepted accounting principles, as in
effect from time to time, as used in the United States applied on a consistent
basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America, for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust as custodian with respect to any
such Government Obligation or a specific payment of interest on or principal of
any such Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
5
<PAGE> 13
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of the Government Obligation evidenced by such depository receipt.
"Guarantee" means a Guarantee Agreement, if any, executed and
delivered by the Company for the benefit of the holders from time to time of all
or a portion of the Trust Securities of a Securities Trust.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the particular series of Securities for which such Person is Trustee established
as contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, shall
mean interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Interest pursuant to Section 1010,
includes such Additional Interest.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means any mortgage, lien, pledge, security interest or
other encumbrance; provided, however, that the term "Lien" shall not mean any
easements, rights-of-way, restrictions and other similar encumbrances and
encumbrances consisting of zoning restrictions, leases, subleases, licenses,
sublicenses, restrictions on the use of property or defects in title thereto.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Officer's Certificate" means a certificate signed by an
executive officer of the Company, and delivered to the Trustee.
6
<PAGE> 14
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or who may be an employee of or other counsel for
the Company and who shall be reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403 with respect to which the Trust has effected defeasance
and/or covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502 and (ii) Securities owned by the Company or another
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such calculation or
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as
7
<PAGE> 15
outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or an
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities or
coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of (and
premium, if any) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Preferred Shares" means, with respect to any Person, capital
shares issued by such Person that are entitled to a preference or priority over
any other capital shares issued by such Person upon any distribution of such
Person's assets, whether by dividend or upon liquidation.
"Redemption Date", when used with respect to any security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security which is
registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid by or pursuant to this Indenture.
8
<PAGE> 16
"Responsible Officer", when used with respect to the Trustee,
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any corporate trust
officer, the controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of such officer's
knowledge and familiarity with the particular subject.
"Sale and Lease-Back Transaction" has the meaning specified in
Section 1012.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder by the Commission.
"Securities Trust" means any statutory business trust formed
by the Company or an Affiliate to issue Trust Securities, the proceeds of which
will be used to purchase Securities of one or more series.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness"means, with respect to any Person, (i)
any payment due in respect of indebtedness of such Person, whether outstanding
at the date of execution of this Indenture or thereafter incurred, created, or
assumed, (a) in respect of money borrowed (including any financial derivative,
hedging or futures contract or similar instrument) and (b) evidenced by
securities, debentures, bonds, notes or other similar instruments issued by such
Person which, by their terms, are senior or senior subordinated debt securities
including, without limitation, all obligations under its indentures with various
trustees; (ii) all capital lease obligations; (iii) all obligations issued or
assumed as the deferred purchase price of property, all conditional sale
obligations and all obligations of such Person under any title retention
agreement (but excluding trade accounts payable arising in the ordinary course
of business and long-term purchase obligations); (iv) all obligations for the
reimbursement of any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (v) all obligations of the type referred
to in clauses (i) through (iv) above of other Persons the payment of which such
Person is responsible or liable as obligor, guarantor or otherwise; and (vi) all
obligations of the type referred to in clauses (i) through (v) above of other
Persons secured by any lien on any property or asset of such Person (whether or
not such obligation is assumed by such Person), except for (1) any such
indebtedness that is by its terms subordinated to or pari passu with the
Securities
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and (2) any unsecured indebtedness between or among such Person or
its Affiliates. Such Senior Indebtedness shall continue to be entitled to the
benefits of the subordination provisions contained in Article Thirteen
irrespective of any amendment, modification or waiver of any term of such Senior
Indebtedness.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act of 1933) of the Trust.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation a majority of the partnership
interests or a majority of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries of
the Company. For the purposes of this definition, "voting stock" means stock
having voting power for the election of directors, whether at all times or only
so long as no senior class of stock has such voting power by reason of any
contingency.
"Trust Agreement", when used with respect to a Securities
Trust, means the agreement or instrument that governs the affairs of such
Securities Trust.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trust Securities" means the securities issued by a Securities
Trust evidencing the entire beneficial interest therein.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become so
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States,
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a corporation, partnership or other entity created or organized in or under the
laws of the United States or an estate or trust the income of which is subject
to United States federal income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1009) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such condition or covenant has been complied
with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
SECTION 103. Form of Documents Delivered to Trustee . In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by
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counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the opinion, certificate or representations with respect to the
matters upon which his certificate or opinion is based are erroneous. Any such
Opinion of Counsel or certificate or representations may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information as to
such factual matters is in the possession of the Company, unless such counsel
knows that the certificate or opinion or representations as to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and such record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments or record or
both are delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments or so voting at any
such meeting. Proof of execution of such an instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. 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 an other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
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(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or such
Bearer Security is surrendered in exchange for a Registered Security, or (3)
such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, in or pursuant to
a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
In the absence of any such record date fixed by the Company,
regardless as to whether a solicitation of the Holders is occurring on behalf of
the Company or any Holder, the Trustee may, at its option, fix in advance a
record date for the determination of such Holders entitled to receive such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Trustee shall have no obligation to do so. Any such record date shall be
a date not more than 30 days prior to the first solicitation of Holders
generally in connection therewith no later than the date of such solicitation.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
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SECTION 105. Notices, etc., to Trustee and Company . Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by a Holder or by the Company shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee, at the
Corporate Trust Office; Attention: Corporate Trust
Administration.
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first
class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first
paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver . Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders of Registered Securities is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
New York City and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
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<PAGE> 22
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents . The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns . All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. Separability Clause . In case any provision in
this Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture . Nothing in this
Indenture or in the Securities or coupons, express or implied, shall give to any
Person, other than the parties hereto, any Security Registrar, any Paying Agent,
any Authenticating Agent and their successors hereunder and the Holders any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law . This Indenture and the
Securities and coupons shall be governed by and construed in accordance with the
law of the State of New York. This Indenture is subject to the provisions of the
TIA that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 112. Legal Holidays . In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Interest or principal (and premium, if any) need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, Redemption Date, Repayment Date or
sinking fund payment date, or at the Stated Maturity or Maturity, provided that
no interest shall accrue on the amount so
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<PAGE> 23
payable for the period from and after such Interest Payment Date, Redemption
Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity,
as the case may be.
SECTION 113. No Recourse Against Others . An incorporator or
any past, present or future director, officer, employee or stockholder, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Holder shall waive and release all such liability. Such waiver and release
shall be part of the consideration for the issue of the Securities.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . The Registered Securities,
if any, of each series and the Bearer Securities, if any, of each series and
related coupons shall be in substantially the forms as shall be established in
one or more indentures supplemental hereto or approved from time to time by or
pursuant to a Board Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such securities or coupons,
as evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 612, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Bank One Trust Company, NA
as Trustee
By
-------------------------------
Authorized Signatory
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SECTION 203. Securities Issuable in Global Form . If
Securities of or within a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (8) of Section 301 and
the provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or 304. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee shall deliver and redeliver any
security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply
to any security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby together with the written statement contemplated by the last sentence of
Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
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The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set forth,
or determined in the manner provided, in an Officer's Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (13) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which
shall distinguish the Securities of such series from all other
series of Securities);
(2) any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of, transfer of,
or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such
date or dates will be determined, on which the principal of
the Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the
series shall bear interest if any, or the method by which such
rate or rates shall be determined, the date or dates from
which such interest shall accrue or the method by which such
date or dates shall be determined, the Interest Payment Dates
on which such interest will be payable and the Regular Record
Date, if any, for the interest payable on any Registered
Security on an Interest Payment Date, or the method by which
such date shall be determined, and the basis upon which
interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(5) the place or places, if any, other than or in
addition to the Borough of Manhattan, New York City, where the
principal of (and premium, if any), interest, if any, on, and
Additional Interest, if any, payable in respect of, Securities
of the series shall be payable, any Registered Securities of
the series may be surrendered for registration of, transfer or
exchange and notices or demands to or upon the Company in
respect of the Securities of the series and this Indenture may
be served;
(6) the period or periods within which, the price or
prices at which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part,
at the option of the Company, if the Company is to have the
option;
(7) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any
sinking fund or analogous provision or at the option of a
Holder thereof, and the period or periods within which or the
date or dates on which, the price or prices at which, and
other terms and conditions
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<PAGE> 26
upon which Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and an
integral multiple thereof, the denominations in which any
Registered Securities of the series shall be issuable and,
other than the denomination of $5,000, the denomination or
denominations in which any Bearer Securities of the series
shall be issuable;
(9) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the
portion of the principal amount or Securities of the series
that shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;
(11) whether the amount of payments of principal of
(and premium, if any) or interest, if any, on the Securities
of the series may be determined with reference to an index,
formula or other method, and the manner in which such amounts
shall be determined;
(12) provisions, if any, granting special rights to
the Holders of Securities of the series upon the occurrence
of such events as may be specified;
(13) any deletions from, modifications of or
additions to the Events of Default or covenants of the Trust
with respect to Securities of the series, whether or not such
Events of Default or covenants are consistent with the Events
of Default or covenants set forth herein;
(14) whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities (with or
without coupons) or both, any restrictions applicable to the
offer, sale or delivery of Bearer Securities and the terms
upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any
Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series
are to be issuable in permanent global form with or without
coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the
manner provided in Section 305, and, if Registered Securities
of the series are to be issuable as a global Security, the
identity of the depositary for such series;
(15) the date as of which any Bearer Securities of
the series and any temporary global Security representing
Outstanding Securities of the series shall be dated if other
than the date of original issuance of the first Security of
the series to be issued;
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(16) the Person to whom any interest on any
Registered Security of the series shall be payable, if other
than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise
than on presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent
to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be
paid if other than in the manner provided in Section 304;
(17) the applicability, if any, of Sections 1402
and/or 1403 to the Securities of the series and any
provisions in modification of, in addition to or in lieu of
any of the provisions of Article Fourteen;
(18) if the Securities of such series are to be
issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security of such series) only
upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
(19) whether and under what circumstances the Company
will pay Additional Interest as contemplated by Section 1010
on the Securities of the series to any Holder who is not a
United States person (including any modification to the
definition of such term) in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have
the option to redeem such Securities rather than pay such
Additional Interest (and the terms of any such option); and
(20) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical
except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided in or pursuant to such Board Resolution
(subject to Section 303) and set forth in such Officer's Certificate or in any
such indenture supplemental hereto. All Securities of any one series need not
be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy of
an appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officer's Certificate setting forth the terms of the
Securities of such series.
SECTION 302. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated by
Section 301. In the
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absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Company by an executive officer of the Company and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
individuals on the Securities and coupons may be Manual or facsimile signatures
of the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities
or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupon appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or Cedel, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at
one time and if the Board Resolution or supplemental indenture establishing such
series shall so permit, such Company Order may set forth procedures acceptable
to the Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such
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Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Section 315(a) through 315(d)) shall be fully protected in
relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and
any coupons have been established in conformity with
the provisions of this Indenture;
(b) the terms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture; and
(c) such Securities, together with any
coupons appertaining thereto, when completed by
appropriate insertions and executed and delivered by
the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this
Indenture and issued by the Company in the manner and
subject to any conditions specified in such Opinion
of Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance
with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws of
general applicability relating to or affecting the
enforcement of creditors' rights generally and to
general equitable principles; and
(ii) an Officer's Certificate stating that all
conditions precedent provided for in this Indenture relating to the
issuance of the Securities have been complied with and that, to the
best of the knowledge of the signers of such certificate, no Event of
Default with respect to any of the Securities shall have occurred and
be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Officer's Certificate
otherwise required pursuant to Section 301 or a Company Order, or an Opinion of
Counsel or an Officer's Certificate otherwise required pursuant to the preceding
paragraph at the time of issuance of each Security of such series, but such
order, opinion and certificates, with appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for
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herein duly executed by the Trustee by manual signature of an authorized
signatory and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 309 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as otherwise
provided in or pursuant to a Board Resolution), if temporary Securities of any
series are issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form other than through the facilities of The
Depository Trust Company. If any such temporary Security is issued in global
form, then such temporary global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common depositary
(the "Common Depositary"), for the benefit of Euroclear and CEDEL, for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
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Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as and contemplated by Section 301, and, if any
combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that, unless otherwise specified in such temporary
global Security, upon such presentation by the Common Depositary, such temporary
global Security is to be accompanied by a certificate dated the Exchange Date or
a subsequent date and signed by Euroclear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by CEDEL as to the
portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to Section 301; and provided
further that definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary global Security only in compliance with the requirements
of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment
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Date upon delivery by Euroclear and CEDEL to the Trustee of a certificate or
certificates in the form set forth in Exhibit A-2 to this Indenture (or in such
other forms as may be established pursuant to Section 301), for credit without
further interest on or after such Interest Payment Date to the respective
accounts of Persons who are the beneficial owners of such temporary global
Security on such Interest Payment Date and who have each delivered to Euroclear
or CEDEL, as the case may be, a certificate dated no earlier than 15 days prior
to the Interest Payment Date occurring prior to such Exchange Date in the form
set forth as Exhibit A-1 to this Indenture (or in such other forms as may be
established pursuant to Section 301). Notwithstanding anything to the contrary
herein contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs of this
Section 304(b) and of the third paragraph of Section 303 of this Indenture and
the interests of the Persons who are the beneficial owners of the temporary
global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby appointed "Security
Registrar" for the purpose of registering Registered securities and transfers of
Registered Securities on such Security Register as herein provided. In the event
that the Trustee shall cease to be Security Registrar, it shall have the right
to examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender
for registration of transfer of any Registered Security of any series at any
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously outstanding,
and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option
of the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal
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amount, containing identical terms and provisions, upon surrender of the
Registered Securities to be exchanged at any such office or agency. Whenever any
such Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, any such permitted exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing
coupon or coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for any
permanent global Security is The Depository Trust Company ("DTC"), then, unless
the terms of such global Security expressly permit such global Security to be
exchanged in whole or in part for definitive Securities, a global Security may
be transferred, in whole but not in part, only to a nominee of DTC, or by a
nominee of DTC to DTC, or to a successor to DTC for such global Security
selected or approved by the Company or to a nominee of such successor to DTC. If
at any time DTC notifies the Company that it is
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<PAGE> 34
unwilling or unable to continue as depositary for the applicable global Security
or Securities or if at any time DTC ceases to be a clearing agency registered
under the Securities Exchange Act of 1934 if so required by applicable law or
regulation, the Company shall appoint a successor depositary with respect to
such global Security or Securities. If (x) a successor depositary for such
global Security or Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal amount
of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such global Security or
Securities or (z) the Company, in its sole discretion, determines at any time
that all Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver definitive Securities of
like series, rank, tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such global Security or Securities. If
any beneficial owner of an interest in a permanent global Security is otherwise
entitled to exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable notice
provided in the permanent global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall execute, and the Trustee
shall authenticate and deliver definitive Securities in aggregate principal
amount equal to the principal amount of such beneficial owner's interest in such
permanent global Security. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered for
exchange by DTC or such other depositary as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company's agent for such
purpose; provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
to be redeemed and ending on the relevant Redemption Date if the Security for
which exchange is requested may be among those selected for redemption; and
provided further that no Bearer Security delivered in exchange for a portion of
a permanent global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
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Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Company or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving an
transfer.
The Company or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period beginning at
the opening of business 15 days before selection of the Securities to be
redeemed under Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if such Securities are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company, together with,
in proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
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<PAGE> 36
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if any),
and interest on and any Additional Interest with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, interest on any Registered
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided, however,
that each installment of interest on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 308,
to the address of such Person as it appears on the Security Register or (ii)
transfer to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest may be made, in the
case of a Bearer Security by transfer to an account maintained by the payee with
a bank located outside the United States.
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Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the
case may be, with respect to that portion of such permanent global Security held
for its account by Cede & Co. or the Common Depositary, as the case may be, for
the purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid or
duly provided for, on an Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of the proposed payment
(which shall not be less than 20 days after such notice is received by the
Trustee), and at the same time the Company shall deposit with the Trustee
dollars in an amount equal to the aggregate amount proposed to be paid in
respect to such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities of such
series at his address as it appears in the Security Register not less than 10
days prior to such Special Record Date. The Trustee may, in its discretion, in
the name and at the
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expense of the Company, cause a similar notice to be published
at least once in an Authorized Newspaper in each place of
payment, but such publications shall not be a condition
precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following
clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such
series after the close of business at such office or agency on
any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment
of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date
of payment and Defaulted Interest will not be payable on such
proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any
other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment
of a Registered Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
such Registered Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any), and (subject
to Sections 305 and 307) interest on, such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the Holder of any Bearer Security and the
Holder of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
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None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary and owners
of beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the
Holder, registration of transfer or exchange or for credit against any sinking
fund payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and coupons and Securities
and coupons surrendered directly to the Trustee for any such purpose shall be
promptly canceled by it; provided, however, where the Place of Payment is
located outside of the United States, the Paying Agent at such Place of Payment
may cancel the Securities surrendered to it for such purposes prior to
delivering the Securities to the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. If the Company shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. Canceled Securities and coupons held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company, unless by a Company Order the Company directs their
return to it.
SECTION 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest on the Securities of each series shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect with respect
to any series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Interest, as provided in Section 1010), and the Trustee, upon receipt of a
Company
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Order, and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series
when
(1) either
(A) all Securities of such series
theretofore authenticated and delivered and all
coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered
for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required
or has been waived as provided in Section 305, (ii)
Securities and coupons of such series which have been
destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, (iii)
coupons appertaining to Securities called for
redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in
Section 1106, and (iv) Securities and coupons of such
series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in
the case of (i) or (ii) below, any coupons
appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) if redeemable at the option of
the Company, are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in
the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose and in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any) and interest,
and any Additional Interest with respect thereto, to the date of such deposit
(in the case of Securities which have become due and payable) or to the Stated
Maturity Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided
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for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any), and any interest and Additional Interest for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever
used herein with respect to any particular series of Securities, means any one
of the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable on an
Interest Payment Date other than at Maturity, including
Additional Interest (as defined in clause (ii) of the
definition thereof) in respect thereof, and continuance of
such default for a period of thirty (30) days; provided,
however, that (i) a valid extension of the interest payment
period by the Company pursuant to the terms of a supplemental
indenture authorizing the Security of that series shall not
constitute a default in the payment of interest for this
purpose; or
(2) default in the payment of Additional Interest (as
defined in clause (i) of the definition thereof) and the
continuance of such default for a period of thirty (30) days;
or
(3) default in the payment of the principal of, (or
premium, if any) or interest (including Additional Interest as
defined in clause (ii) of the definition thereof) on any
Security of that series at its Maturity; or
(4) default in the deposit of any sinking fund
payment, when and as due by the terms of any Security of that
series; or
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(5) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture with
respect to any Security of that series (other than a covenant
or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(6) default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company
(including obligations under leases required to be capitalized
on the balance sheet of the lessee under generally accepted
accounting principles, but not including any indebtedness or
obligations for which recourse is limited to property
purchased) in an aggregate principal amount in excess of
$5,000,000 or under any mortgage, indenture or instrument
under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by
the Company (including such leases but not including such
indebtedness or obligations for which recourse is limited to
property purchased) in an aggregate principal amount in excess
of $5,000,000 by the Company, whether such indebtedness now
exists or shall hereafter be created, which default shall have
resulted in such indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have
become due and payable or such obligations being accelerated,
without such acceleration having been rescinded or annulled;
or
(7) the Company or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a
Custodian of it or for all or substantially all of
its property, or
(D) makes a general assignment for the
benefit of its creditors; or
(8) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or
any Significant Subsidiary or for all or
substantially all of either of its property, or
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(C) orders the liquidation of the Company or
any Significant Subsidiary, and the order or decree
remains unstayed and in effect for 90 days; or
(9) the voluntary or involuntary dissolution, winding
up or termination of the Securities Trust except in connection
with:
(A) the distribution of Securities to
holders of Trust Securities in liquidation of the
Securities Trust,
(B) the redemption of all outstanding Trust
Securities, or
(C) certain mergers or consolidations
permitted by the Trust Agreement; or
(10)any other Event of Default provided with respect
to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S. Code
or any similar Federal or State law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
that time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities of that series, and premium, if any, to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders), and upon any such declaration such principal or specified
portion thereof shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay:
(A) all overdue installments of interest on
and any Additional Interest payable in respect of all
Outstanding Securities of that series and any related
coupons,
(B) the principal of (and premium, if any,
on) any Outstanding Securities of that series which
have become due otherwise than by such
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declaration of acceleration and interest thereon at
the rate or rates borne by or provided for in such
Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue
installments of interest and any Additional Interest
at the rate or rates borne by or provided for in such
Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities
of that series, other than the nonpayment of the principal of
(or premium, if any) or interest on Securities of that series
which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment
of interest or Additional Interest, if any, on any Security of
any series and any related coupon when such interest or
Additional Amount becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security of any series at its
Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Interest, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of interest
or Additional Interest, if any, at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
of such series and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities of such series, wherever situated.
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If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization arrangement, adjustment, composition or other judicial proceeding
relative to the Company or any other obligor upon the Securities or the property
of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of any series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount,
or such lesser amount as may be provided for in the Securities of such
series, of principal (and premium, if any) and interest and Additional
Interest if any, owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii)to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons. All rights of action and claims under this Indenture
or any of the Securities or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the
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reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest and any Additional Interest, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and
interest and any Additional Interest payable, in respect of which or
for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the aggregate
amounts due and payable on such Securities and coupons for principal
(and premium, if any), interest and Additional Interest, respectively;
and
THIRD: To the payment of the remainder, if any, to the
Company.
SECTION 507. Limitation on Suits. No Holder of any Security
of any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for a other remedy hereunder, unless:
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect
to the Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall have
made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the
Trustee indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;
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it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, Interest and Additional Interest. Notwithstanding
any other provision in this Indenture, (1) the Holder of any Security or coupon
shall have the right which is absolute and unconditional to receive payment of
the principal of (and premium, if any) and subject to Sections 305 and 307,
interest on, and any Additional Interest in respect of, such Security or payment
of such coupon on the respective due dates expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder and (2) so long as the Securities of any
series are held by a Securities Trust, a registered holder of preferred
securities issued by such Securities Trust may institute a legal proceeding
directly against the Company (or against the Guarantor pursuant to the
Guarantee), without first instituting a legal proceeding directly against or
requesting or directing that action be taken by the Property Trustee of such
Securities Trust or any other Person, for enforcement of payment to such
registered holder of principal of or interest on Securities of such series
having a principal amount equal to the aggregate stated liquidation amount of
such preferred securities of such registered holder on or after the due dates
therefor specified or provided for in the Securities of such series.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article
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or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders of
Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders
of not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to
the Holders of Securities of such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and any
related coupons waive any past default hereunder with respect to such series and
its consequences, except a default
(1) in the payment of the principal of (or premium,
if any) or interest on or Additional Interest payable in
respect of any Security of such series or any related coupons,
or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without
the consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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SECTION 515. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of any undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys, fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
outstanding securities, or to any suit instituted by any Holder for the
enforcement or the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on or any Additional Interest with respect to any Security
of such series, or in the payment of any sinking fund installment with respect
to the Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
of the Securities and coupons of such series; and provided further that in the
case of any default or breach of the character specified in Section 501(4) with
respect to the Securities and coupons of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
coupon or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order (other than delivery of any Security, together
with any coupons appertaining thereto, to the
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Trustee for authentication and delivery pursuant to Section
303 which shall be sufficiently evidenced as provided therein)
and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any Section
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(5) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders of
Securities of any series or any related coupons pursuant to
this Indenture, unless such Holders shall have offered to the
Trustee adequate security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to make
reasonable examination of the books, records and premises of
the Company, personally or by agent or attorney following
reasonable notice to the Company;
(7) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
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Except during the continuance of an Event of Default, the
Trustee undertakes to perform only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon
its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance
as may be attributable to any act for which the Trustee shall
have been adjudged negligent or to have acted in bad faith;
and
(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against, any
loss, liability or expense incurred, except for gross
negligence or actions taken in bad faith without negligence
or bad faith on its own part, arising out of or in connection
with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending
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itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or Section
501(7), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. There shall at all times be a Trustee hereunder which
shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request
therefor by the Company or by any Holder of a Security who has
been a bona fide Holder of a Security for at least six months,
or
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(2) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written request
therefor by the Company or by any Holder of a Security who has
been a bona fide Holder of a Security for at least six months,
or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Company, by
or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series).
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with resect to the Securities of
any series shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders of
Securities and accepted appointment in the manner hereinafter provided, any
Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring
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Trustee; but, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case
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any Securities or coupons shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such authentication and deliver the
Securities or coupons so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities or coupons. In case any
Securities or coupons shall not have been authenticated by such predecessor
Trustee, any such successor Trustee may authenticate and deliver such Securities
or coupons, in either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
SECTION 611. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor). For purposes of TIA Section 311(b)(4)
and (6)
(1) "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or bankers and
payable upon demand; and
(2) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company (or any such obligor)
for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company (or any such obligor)
arising from the making, drawing, negotiating or incurring of
the draft, bill of exchange, acceptance or obligation.
SECTION 612. Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or
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the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Bank One Trust Company, NA
as Trustee
By:
---------------------------------
as Authenticating Agent
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Authenticating Agent nor any Paying Agent nor any Security Registrar shall
be held accountable by reason of the disclosure of any information as to the
names and addresses of the Holders of Securities in accordance with TIA Section
312, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after June 1
of each year commencing with the first June 1 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such June 1 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of such Sections, then it will file with the Trustee, in accordance
with rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations;
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(c) the Trustee shall transmit the reports required by TIA
Section 313(b) at the times specified therein; and
(d) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c) and (d), such summaries of any information,
documents and reports required to be filed by the Company pursuant to paragraphs
(a) and (b) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished,
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other entity, provided that in any such
case, (1) either the Company shall be the continuing entity, or the successor
entity (if other than the Company) formed by or resulting from any such
consolidation or merger or which shall have received the transfer of such assets
shall expressly assume the Company's obligations under the Trust Guarantee and
the due and punctual payment of the principal of (and premium, if any) and any
interest (including all Additional Interest, if any, payable pursuant to Section
1010) on all of the Securities, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company and (2) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or the lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing under the Trust
Guarantee or this Indenture.
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SECTION 802. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor entity, such successor entity shall succeed to
and be substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and the predecessor entity, except in the
event of a lease, shall be relieved of any further obligation under this
Indenture and the Securities. Such successor entity thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company, any
or all of the Securities issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the order of
such successor entity, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor entity thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 803. Officer's Certificate and Opinion of Counsel.
Any consolidation, merger, sale, lease or conveyance permitted under Section 801
is also subject to the condition that the Trustee receive an Officer's
Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
entity corporation, complies with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of
Holders. Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the securities
contained; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are
expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company; or
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(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and
if such Events of Default are to be for the benefit of less
than all series of Securities, stating that such Events of
Default are expressly being included solely for the benefit of
such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may
provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case
of other defaults) or may provide for an immediate enforcement
upon such default or may limit the remedies available to the
Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or
those series of Securities to which such additional Events of
Default apply to waive such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable
as to principal, to change or eliminate any restrictions on
the payment of principal of or any premium or interest on
Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form, provided that
any such action shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons
in any material respect; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only when there is no Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series and any related coupons as permitted by Sections
201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the
provisions of this Indenture, provided such provisions shall
not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any
material respect; or
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(10) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Sections 401, 1402 and 1403; provided
that any such action shall not adversely affect the interests
of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material
respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of
(or premium, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount
thereof or the rate or amount of interest thereon or any
Additional Interest payable in respect thereof, or any premium
payable upon the redemption thereof, or change any obligation
of the Company to pay Additional Interest pursuant to Section
1010 (except as contemplated by Section 801(l) and permitted
by Section 901(1)), or reduce the amount of the principal of
an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable
in bankruptcy pursuant to Section 504, or adversely affect any
right of repayment at the option of the Holder of any
Security, or change any Place of Payment where, or the
currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption or repayment
at the option of the Holder, on or after the Redemption Date
or the Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver with
respect to such series (or compliance with certain provisions
of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1013, except to increase the required
percentage to effect such action or to provide that certain
other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Security affected thereby.
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It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with TIA. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements
of the TIA as then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest
and Additional Interest. The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Interest
payable in respect of the Securities of that series in accordance with the terms
of such series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Interest payable in respect of Bearer
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Securities on or before Maturity, other than Additional Interest, if any,
payable as provided in Section 1010 in respect of principal of (or premium, if
any, on) such a Security, shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature. Unless otherwise specified with respect to Securities
of any series pursuant to Section 301, at the option of the Company, all
payments of principal may be paid by check to the registered Holder of the
Registered Security or other person entitled thereto against surrender of such
Security.
SECTION 1002. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, the Company shall
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain: (A) in the Borough of Manhattan, New York City, an office or agency
where any Registered Securities of that series may be presented or surrendered
for payment or where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be surrendered
for exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment in the circumstances described in the following paragraph (and not
otherwise); (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any Additional
Interest payable on Securities of that series pursuant to Section 1010);
provided, however, that if the Securities of that series are listed on the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will maintain a
Paying Agent for the Securities of that series in Luxembourg or any other
required city located outside the United States, as the case may be, so long as
the Securities of that series are listed on such exchange; and (C) subject to
any laws or regulations applicable thereto, in a Place of Payment for that
series located outside the United States, an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of each such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Interest payable on
Bearer Securities of that series pursuant to Section 1010) or at the offices
specified in the Security, in London, England, and the Company hereby appoints
the same as its agent to receive such respective presentations, surrenders,
notices and demands, and the Company hereby appoints the Trustee its agent to
receive all such presentations, surrenders, notices and demands.
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Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on or
Additional Interest in respect of Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank
allocated in the United States; provided, however, that payment of principal of
and any premium and interest on any Bearer Security (including any Additional
Interest payable on securities of such series pursuant to Section 1010) shall be
made at the office of the designated agent of the Company's Paying Agent in the
Borough of Manhattan, New York City if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or Additional Interest, as the
case may be, at all offices or agencies outside the United States maintained for
the purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless otherwise noted with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan
New York City, and initially appoints the Trustee at its Corporate Trust office
as Paying Agent and as its agent to receive all such presentations, surrenders,
notices and demands.
SECTION 1003. Money for Securities Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent with respect
to any series of any securities and any related coupons, it will, on or before
each due date of the principal of (and premium, if any), or interest on or
Additional Interest in respect of, any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium if any) or interest or
Additional Interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee, of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, before each due date
of the principal of (and premium, if any), or interest on or Additional Interest
in respect of, any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium if any) or interest or Additional
Interest, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest or Additional Interest
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will
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(1) hold all sums held by it for the payment of
principal of (and premium, if any) or interest on Securities
or Additional Interest in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Trust (or any other obligor upon the Securities) in the making
of any such payment of principal (and premium, if any) or
interest or Additional Interest; and
(3) at any time during the continuance of any such
default upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or
interest on, or any Additional Interest in respect of, any Security of any
series and remaining unclaimed for two years after such principal (and premium,
if any), interest or Additional Interest has become due and payable shall be
paid to the Company upon Company Request or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment of such
principal of (and premium, if any) or interest on, or any Additional Interest in
respect of, any Security, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Existence. Subject to Article Eight, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence as a corporation, rights (charter and statutory)
and franchises; provided, however, that the Company shall not be required to
preserve any right or franchise if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company.
SECTION 1005. Maintenance of Properties. The Company will
cause all of its material properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied
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with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times.
SECTION 1006. Insurance. The Company will, and will cause each
of its Subsidiaries to, keep all of its insurable properties insured against
loss or damage at least equal to their then full insurable value with insurers
of recognized responsibility.
SECTION 1007. Payment of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (2) all lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a material lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith.
SECTION 1008. Provision of Financial Information. Whether or
not the Company is subject to Section 13 or 15(d) of the Exchange Act, the
Company will prepare the annual reports, quarterly reports and other documents
within 15 days of each of the respective dates by which the Company would have
been required to file with the Commission pursuant to such Section 13 or 15(d)
and will (i) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, without cost to such Holders copies of the
annual reports, quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act if the Company were subject to such Sections, (ii) file with
the Trustee copies of the annual reports, quarterly reports and other documents
which the Trust would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Company were subject to such
Sections and (iii) promptly upon written request and payment of the reasonable
cost of duplication and delivery, supply copies of such documents to any
prospective Holder.
SECTION 1009. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture and,
in the event of any noncompliance, specifying such noncompliance and the nature
and status thereof. For purposes of this Section 1009, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1010. Additional Interest. If any Securities of a
series provide for the payment of Additional Interest, the Company will pay to
the Holder of any Security of such series or any coupon appertaining thereto
Additional Interest as may be specified as contemplated by Section 301. Whenever
in this Indenture there is mentioned, in any context except in the case of
Section 502(1), the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Security of any series,
such mention shall be
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deemed to include mention of the payment of Additional Interest provided by
the terms of such series established pursuant to Section 301 to the extent
that, in such context, Additional Interest is, was or would be payable
in respect thereof pursuant to such terms and express mention of the payment of
Additional Interest (if applicable) in any provisions hereof shall not be
construed as excluding Additional Interest in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Interest, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal and
any premium or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company will furnish
the Trustee and the Company's principal Paying Agent or Paying Agents, if other
than the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Interest required by the
terms of such Securities. In the event that the Trustee or any Paying Agent, as
the case may be, shall not so receive the above-mentioned certificate, then the
Trustee or such Paying Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of principal or
interest with respect to any Securities of a series or related coupons until it
shall have received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to the Securities of a series or
related coupons without withholding or deductions until otherwise advised. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Company's
not furnishing such an Officers' Certificate.
SECTION 1011. Limitations on Liens. The Company shall not, and
shall not cause or permit any Subsidiary to, issue, assume or guarantee any Debt
secured by a Lien upon any property or assets (other than cash) of the Company
or such Subsidiary, as applicable, without effectively providing that the
outstanding Securities (together with, if the Company so determines, any other
indebtedness or obligation then existing or thereafter created ranking equally
with such Securities) shall be secured equally and ratably with (or prior to)
such Debt so long as such Debt shall be so secured. The foregoing restriction on
Liens will not, however, apply to:
(a) Liens in existence on the date of original issue of such
Securities;
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(b) (i) any Lien created or arising over any property which is
acquired, constructed or created by the Company, or any of its Subsidiaries, but
only if (A) such Lien secures only principal amounts (not exceeding the cost of
such acquisition, construction or creation) raised for the purposes of such
acquisition, construction or creation, together with any costs, expenses,
interest and fees incurred in relation thereto or a guarantee given in respect
thereof, (B) such Lien is created or arises on or before 90 days after the
completion of such acquisition, construction or creation and (C) such Lien is
confined solely to the property so acquired, constructed or created; or (ii) any
Lien to secure Debt of the Company or a Subsidiary incurred in connection with a
specifically identifiable project where the Lien relates to and is confined to a
property or properties (including, without limitation, shares or other rights of
ownership in the entities which own such property or project) involved in such
project and acquired by the Company or a Subsidiary after the date of original
issue of the Securities of any series and the recourse of the creditors in
respect of such Debt is limited to any or all of such project and property
(including as aforesaid);
(c) any Lien securing amounts not more than 90 days overdue or
otherwise being contested in good faith;
(d) (i) rights of financial institutions to offset credit
balances in connection with the operation of cash management programs
established for the benefit of the Company or a Subsidiary or in connection with
the issuance of letters of credit for the benefit of the Company or a
Subsidiary; (ii) any Lien securing Debt of the Company or a Subsidiary incurred
in connection with the financing of accounts receivable; (iii) any Lien incurred
or deposits made in the ordinary course of business, including, but not limited
to, (A) any mechanics', materialmens', carriers', workmens', vendors' or other
like Liens and (B) any Liens securing amounts in connection with workers'
compensation, unemployment insurance and other types of social security; (iv)
any Lien upon specific items of inventory or other goods and proceeds of the
Company or a Subsidiary securing obligations of the Company or a Subsidiary in
respect of bankers' acceptances issued or created for the account of such person
to facilitate the purchase, shipment or storage of such inventory or other
goods; (v) any Lien incurred or deposits made securing the performance of
tenders, bids, leases, trade contracts (other than for borrowed money),
statutory obligations, surety bonds, appeal bonds, government contracts,
performance bonds, return-of-money bonds and other obligations of like nature
incurred in the ordinary course of business; (vi) any Lien constituted by a
right of set off or right over a margin call account or any form of cash or cash
collateral or any similar arrangement for obligations incurred in respect of the
hedging or management of risks under transactions involving any currency or
interest rate swap, cap or collar arrangements, forward exchange transaction,
option, warrant, forward rate agreement, futures contract or other derivative
instrument of any kind; (vii) any Lien arising out of title retention or like
provisions in connection with the purchase of goods and equipment in the
ordinary course of business; and (viii) any Lien securing reimbursement
obligations under letters of credit, guaranties and other forms of credit
enhancement given in connection with the purchase of goods and equipment in the
ordinary course of business;
(e) Liens in favor of the Company or a Subsidiary;
(f) (i) Liens on any property or assets acquired from a
corporation which is merged with or into the Company or a Subsidiary, or any
Liens on the property or assets of any
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corporation or other entity existing at the time such corporation or other
entity becomes a Subsidiary of the Company and, in either such case, is not
created in anticipation of any such transaction (unless such Lien is created to
secure or provide for the payment of any part of the purchase price of such
corporation); (ii) any Lien on any property or assets existing at the time of
acquisition thereof and which is not created in anticipation of such acquisition
(unless such Lien was created to secure or provide for the payment of any part
of the purchase price of such property or assets); and (iii) any Lien created or
outstanding on or over any asset of any Person which becomes a Subsidiary on or
after the date of the issuance of such Securities when such Lien is created
prior to the date on which such Person becomes a Subsidiary;
(g) (i) Liens required by any contract or statute in order to
permit the Company or a Subsidiary to perform any contract or subcontract made
by it with or at the request of a governmental entity or any department, agency
or instrumentality thereof, or to secure partial, progress, advance or any other
payments by the Company or a Subsidiary to such governmental unit pursuant to
the provisions of any contract or statute; (ii) any Lien securing industrial
revenue, development or similar bonds issued by or for the benefit of the
Company or a Subsidiary, provided that such industrial revenue, development or
similar bonds are nonrecourse to the Company or such Subsidiary; and (iii) any
Lien securing taxes or assessments or other applicable governmental charges or
levies;
(h) (i) any Lien which arises pursuant to any order of
attachment, distraint or similar legal process arising in connection with court
proceedings and any Lien which secures the reimbursement obligation for any bond
obtained in connection with an appeal taken in any court proceeding, so long as
the execution or other enforcement of such Lien arising pursuant to such legal
process is effectively stayed and the claims secured thereby are being contested
in good faith and, if appropriate, by appropriate legal proceedings, or any Lien
in favor of a plaintiff or defendant in any action before a court or tribunal as
security for costs and/or other expenses; or (ii) any Lien arising by operation
of law or by order of a court or tribunal or any Lien arising by an agreement of
similar effect, including, without limitation, judgment liens; or
(i) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any Liens
referred to in the foregoing clauses, for amounts not exceeding the principal
amount of the Debt secured by the Lien so extended, renewed or replaced,
provided that such extension, renewal or replacement Lien is limited to all or a
part of the same property or assets that were covered by the Lien extended,
renewed or replaced (plus improvements on such property or assets).
Nothing contained in this Indenture in any way restricts or
prevents the Company or any Subsidiary from incurring any Debt.
SECTION 1012. Limitations on Sale and Lease-Back Transactions.
The Company covenants and agrees that so long as any Securities of such series
remains outstanding, it will not, and the Company will not permit any Subsidiary
to, enter into any arrangement with any Person (other than the Company or a
Subsidiary), providing for the leasing to the Company or a Subsidiary of any
assets which have been or are to be sold or transferred by the Company or such
Subsidiary to such Person (a "Sale and Lease-Back Transaction") unless; (a) such
transaction involves a lease for a temporary period not to exceed three years;
(b) such transaction
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is between the Company or a Subsidiary and an affiliate of the Company; (c) the
Company would be entitled to incur debt secured by a Lien on the assets or
property involved in such transaction at least equal in amount to the
Attributable Debt with respect to such Sale and Lease-Back Transaction, without
equally and ratably securing the Securities, pursuant to the limitation on Liens
described above; (d) such transaction is entered into within 90 days after the
initial acquisition by the Company of the assets or property subject to such
transaction; (e) after giving effect thereto, the aggregate amount of all
Attributable Debt with respect to all such Sale and Lease-Back Transactions does
not exceed 10% of Consolidated Net Tangible Assets; or (f) the Company or a
Subsidiary within the twelve months preceding the sale or transfer or the twelve
months following the sale or transfer, regardless of whether such sale or
transfer may have been made by the Company or such Subsidiary, applies in the
case of a sale or transfer for cash, an amount equal to the net proceeds thereof
and, in the case of a sale or transfer otherwise than for cash, an amount equal
to the fair value of the assets so leased at the time of entering into such
arrangement (as determined by the Board of Directors of the Company or such
Subsidiary), (i) to the retirement of debt, incurred or assumed by the Company
or a Subsidiary, which by its terms matures at, or is extendible or renewable at
the option of the obligor to, a date more than twelve months after the date of
incurring, assuming or guaranteeing such debt or (ii) to investment in any
assets of the Company or any Subsidiary.
SECTION 1013. Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any term, provision or condition
set forth in Sections 1004 to 1008, inclusive, or section 1011 or Section 1012
if before or after the time for such compliance the Holders of at least a
majority in principal amount of all outstanding Securities of such series, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
SECTION 1014. Covenants Regarding Trust. For so long as the
Trust Securities remain outstanding, the Company covenants (i) to directly or
indirectly maintain 100% of ownership of the Trust Common Securities (as defined
in the Trust Agreement relating to such securities) of the Trust; provided,
however, that any permitted successor of the Company hereunder may succeed to
the Company's ownership of such Trust Common Securities, and (ii) to use its
reasonable efforts to cause the Trust (a) to remain a statutory business trust,
except in connection with the distribution of Subordinated Debentures to the
holders of Trust Securities in liquidation of the Trust, the redemption of all
of the Trust Securities of the Trust, or certain mergers, consolidations or
amalgamations, each as permitted under the Trust Agreement, and (b) to otherwise
continue to be classified as a grantor trust for United States federal income
tax purposes.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and
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(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In the case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company shall,
at least 45 days prior to the giving of the notice of redemption in Section 1104
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series issued on such date with
the same terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 106, not less than 30 days nor more
than 60 days prior to the Redemption Date, unless a shorter period is specified
by the terms of such series established pursuant to Section 301, to each Holder
of Securities to be redeemed, but failure to give such notice in the manner
herein provided to the Holder of any Security designated for redemption as a
whole or in part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any other such
Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
and Additional Interest, if any,
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amount) of the
particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of such
Security, the holder will receive, without a charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price
and accrued interest to the Redemption Date payable as
provided in Section 1106, if any, will become due and payable
upon each such Security, or the portion thereof, to be
redeemed and if applicable, that interest thereon shall cease
to accrue on and after said date,
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with all
coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if
such is the case,
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
subsequent to the date fixed for redemption or the amount of
any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to
the Company, the Trustee for such series and any Paying Agent
is furnished,
(9) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are not
to be redeemed, and if such Bearer Securities may be exchanged
for Registered Securities not subject to redemption on this
Redemption Date pursuant to Section 305 or otherwise, the last
date, as determined by the Company, on which such exchanges
may be made, and
(10)the CUSIP number of such Security, if any
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. At least one
Business Day prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in section
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1003) an amount sufficient to pay on the Redemption Date the Redemption Price
of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities or portions thereof which are to be
redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified (together with accrued interest, if any, to the Redemption
Date), and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities shall, if
the same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and provided further that, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the
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Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of an sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund Payment", and any payment in excess of such minimum amount provided
for by the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund Payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of the Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series, (1) deliver
Outstanding Securities of such series (other than any previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, as
provided for by the terms of such Securities, or which have otherwise been
acquired by the Company; provided that such Securities so delivered or applied
as a credit have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officers'
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Trust shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner
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specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities, if any,
and (except as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at a price equal to the principal amount thereof, together with interest,
if any, thereon accrued to the Repayment Date specified in or pursuant to the
terms of such Securities. The Company covenants that at least one Business Day
prior to the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount sufficient to pay the principal
(or, if so provided by the terms of the Securities of any series, a percentage
of the principal) of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof, as
the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. In order for
any Security to be repaid at the option of the Holder, the Trustee must receive
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly authorized in writing)
or (2) a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc. ("NASD"), or a commercial bank or trust company in the United States
setting forth the name of the Holder of the security, the principal amount of
the Security, the principal amount of the Security to be repaid, the CUSIP
number, if any, or a description of the tenor and terms of the Security, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that the Security to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse of the Security will be
received by the Trustee not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter; provided, however, that
such telegram, telex, facsimile transmission or letter shall only be effective
if such Security and form duly completed are received by the Trustee by such
fifth Business Day. If less than the entire principal amount of such Security is
to be repaid in accordance with the terms of such Security, the principal amount
of such Security to be repaid, in
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increments of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered that
is not to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not be repaid in
part if, following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of the
series of which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the option of
the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security or repayment in accordance with such provisions, together with
all coupons, if any, appertaining thereto maturing after the Repayment Date, the
principal amount of such Security so to be repaid shall be paid by the Company,
together with accrued interest, if any, to the Repayment Date; provided,
however, that coupons whose Stated Maturity is on or prior to the Repayment Date
shall be payable, only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
pursuant to Section 301, only upon presentation and surrender of such coupons;
and provided further that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the Repayment Date
shall be payable (but without interest thereon, unless the Company shall default
in the payment thereof) to the Holders of such Securities, or one or more
Predecessor Securities registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon
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accrued to such Repayment Date) shall, until paid, bear interest from the
Repayment Date at the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision
is made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as, may be specified pursuant to Section 301
with respect to any Securities) shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities and
any coupons appertaining thereto on the date the conditions set forth in Section
1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in clauses (A) and (B) below, and to have satisfied
all of its other obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such Securities and any coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same) except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest, if any, on such Securities
and any coupons appertaining thereto when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 305, 306,
1002 and 1003 and with respect to the payment of Additional Interest, if any, on
such Securities as contemplated
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by Section 1010, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article. Subject to compliance with this Article
Fourteen, the Company may exercise its option under this Section notwithstanding
the prior exercise of its option under Section 1403 with respect to such
Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise
of the above option applicable to this Section with respect to any Securities of
or within a series, the Company shall be released from its obligations under
Sections 1004 to 1008, inclusive, Section 1011 and Section 1012, and, if
specified pursuant to Section 301, its obligations under any other covenant,
with respect to such Outstanding Securities and any coupons appertaining thereto
on and after the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Sections 1004 to 1008,
inclusive, Section 1011 or Section 1012, or such other covenant, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any coupons appertaining thereto, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default under
Section 501(4) or 501(8) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402 or Section
1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount of money, or (2) Government Obligations applicable to
such Securities and coupons appertaining thereto which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment of
principal of (and premium, if any) and interest, if any, on such Securities and
any coupons appertaining thereto, money in an amount, or (3) a combination
thereof, in any case, in an amount, sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (1) the principal of (and premium, if any) and interest, if any, on
such Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to such
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Outstanding securities and any coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 1402 or the covenant
defeasance under Section 1403 (as the case may be) have been complied with and
an Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be), registration is
not required under the Investment Trust Act of 1940, as amended, by the Company,
with respect to the trust funds representing such deposit or by the Trustee for
such trust funds or (ii) all necessary registrations under said Act have been
effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 301.
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SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons as pertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Interest, if any, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding,
subject to Section 606, the Trustee shall deliver or pay to the Company from
time to time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1404
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at such
place in the Borough of Manhattan, New York City, as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days or to the date
fixed for the meeting.
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(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, New York City, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meeting. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if, any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at the reconvening of any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days; at the reconvening of any meeting adjourned or further
adjourned for lack of a quorum, the persons entitled to vote 25% in the
aggregate principal amount of the Securities at the time outstanding shall
constitute a quorum for the taking of any action set forth in the notice of the
original meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities represented at such meeting; provided, however, that,
except as limited by the proviso to Section 902, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture
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expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for
such meeting; and
(ii)the principal amount of the Outstanding
Securities of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action shall
be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has
been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a
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temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any Series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to Article Four), the
payment of the principal of, premium, if any, and interest (including Additional
Interest, if any) on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full in cash
of all Senior Indebtedness.
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SECTION 1602. Payment of Proceeds Upon Dissolution, Etc. Upon
any payment or distribution of assets of the Company to creditors upon any
liquidation, dissolution, winding-up, reorganization, assignment for the benefit
of creditors, marshalling of assets or liabilities or any bankruptcy, insolvency
or similar proceedings of the Company (each such event, if any, referred to as a
"Proceeding"), the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due on or to become due on or in respect of all
Senior Indebtedness (including any interest accruing thereon after the
commencement of any such Proceeding, whether or not allowed as a claim against
the Company in such Proceeding), before the Holders of the Securities are
entitled to receive any payment or distribution (excluding any payment described
in Section 1609) on account of the principal of, premium, if any, or interest
(including Additional Interest, if any) on the Securities or on account of any
purchase, redemption or other acquisition of Securities by the Company (all such
payments, distributions, purchases, redemptions and acquisitions, whether or not
in connection with a Proceeding, herein referred to, individually and
collectively, as a "Payment").
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing shall be received by
the Trustee or the Holders of the Securities before all Senior Indebtedness is
paid in full, or provision is made for such payment in money in accordance with
its terms, such payment or distribution shall be held in trust for the benefit
of and shall be paid over or delivered to the holders of Senior Indebtedness or
to the trustee or trustees under any indenture pursuant to which any instruments
evidencing any such Senior Indebtedness may have been issued, as their
respective interests may appear, as calculated by the Company, for application
to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness.
For purposes of this Article, "assets of the Company" shall
not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article with respect to the
Securities to the payment of all Senior Indebtedness that may at the time be
outstanding, provided, however, that (i) Senior Indebtedness is assumed by the
new corporation, if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of the Senior Indebtedness are not, without
the consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided for in
Article Eight hereof shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the purposes of this Section 1602 if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article Eight hereof. Nothing in
Section 1603 or in this Section 1602 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 606.
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SECTION 1603. No Payment When Senior Indebtedness in Default.
No payment of any principal, including redemption payments, if any, premium, if
any, or interest (including Additional Interest, if any) on the Securities shall
be made if
(i) any Senior Indebtedness is not paid when due
whether at the stated maturity of such payment or by call for
redemption and any applicable grace period with respect to such default
has ended, with such default remaining uncured and such default has not
been waived or otherwise ceased to exist;
(ii)the maturity of any Senior Indebtedness has been
accelerated because of a default; or
(iii) notice has been given of the exercise of an
option to require repayment, mandatory payment or prepayment of Senior
Indebtedness.
In the event that, notwithstanding the foregoing, the Company
shall make any Payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section, then in such event such event such Payment shall be
held in trust and paid over and delivered forthwith to the holders of the Senior
Indebtedness.
The provisions of this Section shall not apply to any Payment
with respect to which Section 1602 hereof would be applicable.
SECTION 1604. Payment Permitted If No Default. Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities shall prevent the Company, at any time except during the pendency of
any Proceeding referred to in Section 1602 hereof or under the conditions
described in Section 1603 hereof, from making Payments. Nothing in this Article
shall have any effect on the right of the Holders or the Trustee to accelerate
the maturity of the Securities upon the occurrence of an Event of Default, but,
in that event, no payment may be made in violation of the provisions of this
Article with respect to the Securities. If payment of the Securities is
accelerated because of an Event of Default, the Company shall promptly notify
the holders of the Senior Indebtedness (or their representatives) of such
acceleration.
SECTION 1605. Subrogation to Rights of Holders of Senior
Indebtedness. The rights of the Holders of the Securities shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of, premium, if any, and interest (including
Additional Interest, if any) on the Junior Subordinated Notes shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments pursuant to the provisions of this
Article to the holders of Senior Indebtedness by Holders of the Securities or
the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 1606. Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the
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Holders on the one hand and the holders of Senior Indebtedness on the other
hand. Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional
(and which, subject to the rights under this Article of the holders of Senior
Indebtedness, is intended to rank equally with all other general obligations of
the Company), to pay to the Holders of the Securities the principal of, premium,
if any, and interest (including Additional Interest, if any) on the Securities
as and when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder or, under the conditions
specified in Section 1603, to prevent any payment prohibited by such Section or
enforce their rights pursuant to the penultimate paragraph in Section 1603.
SECTION 1607. Trustee to Effectuate Subordination. Each Holder
of a Security by his acceptance thereof authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes, including, in the event of any
dissolution, winding-up, liquidation or reorganization of the Company, whether
in bankruptcy, insolvency, receivership proceedings, or otherwise, the timely
filing of a claim for the unpaid balance of the indebtedness of the Company
owing to such Holder in the form required in such proceedings and the causing of
such claim to be approved.
SECTION 1608. No Waiver of Subordination Provisions. No right
of any present or future holder of any Senior Indebtedness to enforce the
subordination provisions provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or any failure to act, in good faith, by any such holder, or by
any noncompliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have to
be or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: i) change the manner,
place or terms of payment or extend the time for payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) permit the Company to borrow, repay and
then reborrow any or all of the Senior Indebtedness; (iii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iv) release any Person liable in any manner for
the collection of Senior Indebtedness; (v) exercise or refrain from
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exercising any rights against the Company and any other Person; or (vi) apply
any sums received by them to Senior Indebtedness.
SECTION 1609. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money held in trust by
the Trustee under Article Four for the payment of the principal of, premium, if
any, and interest (including Additional Interest, if any) on any series of
Securities shall not be subordinated to the prior payment of any Senior
Indebtedness or subject to the restrictions set forth in this Article and no
Holder of such Securities nor the Trustee shall be obligated to pay over such
amount to the Company, any holder of Senior Indebtedness (or a designated
representative of such holder) or any other creditor of the Company.
SECTION 1610. Notice to the Trustee. The Company shall give
prompt written notice to a Responsible Officer of the Trustee of any fact known
to the Company that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Securities pursuant to the provisions of this
Article. Notwithstanding the provisions of this Article or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Securities pursuant to the provisions of
this Article unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of the Trustee
from the Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 601, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 1610 at
least two Business Days prior to the date upon which, by the terms hereof, any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purposes for which they were received, and shall not be affected by any
notice to the contrary that may be received by it within two Business Days prior
to such date.
The Trustee, subject to the provisions of Section 601, shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be holder of Senior Indebtedness (or a trustee on behalf
of such holder) to establish that such notice has been given by a holder of
Senior Indebtedness or a trustee on behalf of any such holder or holders. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished the
Trustee may defer any payment to such person pending judicial determination as
to the right of such person to receive such payment.
SECTION 1611. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article, the
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Trustee, subject to the provisions of Section 601 hereof, and the Holders of the
Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such Proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Person entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article, provided that
the foregoing shall apply only if such court has been apprised of the provisions
of this Article.
SECTION 1612. Trustee Not Fiduciary for Holders of Senior
Indebtedness; Subject to the provisions of Section 601, the Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
SECTION 1613. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness which may at any time be held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee or pursuant to Section 606 hereof.
SECTION 1614. Article Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee (or the Company or an Affiliate
of the Company) shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article shall in such case (unless
the context otherwise required) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee.
SECTION 1615. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Holder by accepting a Security acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or to continue to
hold, such Senior Indebtedness and such holder of Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in acquiring
and continuing to hold, or to continue to hold, such Senior Indebtedness.
81
<PAGE> 89
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
SECTION 1701. Assignment; Binding Effect. The Company shall
have the right at all times to assign any of its rights or obligations under
this Indenture to a direct or indirect wholly-owned subsidiary of the Company,
provided that, in the event of any such assignment, the Company shall remain
primarily liable for the performance of all such obligations. This Indenture may
also be assigned by the Company in connection with a transaction described in
Article Eight. This Indenture shall be binding upon and inure to the benefit of
the Company, the Trustee, the Holders, any Security Registrar, Paying Agent, and
Authenticating Agent and, to the extent specifically set forth herein, the
holders of Senior Indebtedness and their respective successors and assigns. The
provisions of clause (2) of Section 508 are for the benefit of the holders of
the series of Trust Securities referred to therein and, prior to the dissolution
of the related Securities Trust, may be enforced by such holders. A holder of a
Trust Security shall not have the right, as such a holder, to enforce any other
provision of this Indenture.
SECTION 1702. Additional Interest. Whenever there is mentioned
in this Indenture, in any context, the payment of the principal of, premium, if
any, or interest on, or in respect of, any Security of any series such mention
shall be deemed to include mention of the payment of Additional Interest
provided for by the terms of such series of Securities to the extent that, in
such context, Additional Interest is, was or would be payable in respect thereof
pursuant to such terms, and express mention of the payment of Additional
Interest in any provisions hereof shall not be construed as excluding Additional
Interest in those provisions hereof where such express mention is not made.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
82
<PAGE> 90
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above written.
SEMCO ENERGY INC.
By:
------------------------------
Title:
Attest:
------------------------------
Title:
Bank One Trust Company, NA
as Trustee
By:
------------------------------
Title:
Attest:
------------------------------
Title:
83
<PAGE> 91
STATE OF __________________ )
)ss:
COUNTY OF__________________ )
On the _____ day of ________ 1999, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he/she resides at _______________________, that he/she is
__________ of SEMCO ENERGY INC., one of the parties described in and which
executed the foregoing instrument, and that he/she signed his/her name thereto
by authority of the Board of Directors.
(Notarial Seal)
_________________________________
Notary Public
COMMISSION EXPIRES
STATE OF __________________ )
)ss:
COUNTY OF__________________ )
On the _____ day of _____, 1999, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he/she resides at ____________________, that he/she is a _________________
of Bank One Trust Company, NA, one of the parties described in and which
executed the foregoing instrument, and that he/she signed his/her name thereto
by authority of the Board of Directors.
(Notarial Seal)
_________________________________
Notary Public
COMMISSION EXPIRES
84
<PAGE> 92
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
(Insert title or sufficient description of Securities to be delivered)
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise SEMCO Energy, Inc., or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also ascribed in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your operating procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to {U.S.$} of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we
A-1-1
<PAGE> 93
understand an exchange for an interest in a Permanent Global Security or an
exchange for and delivery of definitive Securities (or, if relevant, collection
of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: 19
---------------------------------- ---
(To be dated no earlier than the 15th day prior to (i)
the Exchange Date or (ii) the relevant Interest
Payment Date occurring prior to the Exchange Date,
as applicable)
(Name of Person Making Certification)
-------------------------------------
(Authorized Signature)
Name:
Title:
A-1-2
<PAGE> 94
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
(Insert title or sufficient description of Securities to be delivered)
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, {U.S.$} _________________ principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) is owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise SEMCO Energy, Inc. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institution(s) for purposes
of resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above referenced certificates of Member organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
A-2-1
<PAGE> 95
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ___________________________ 19___
(To be dated no earlier than the Exchange Date or
the relevant Interest Payment Date occurring prior
to the Exchange Date, as applicable)
(Morgan Guaranty Trust of New York,
Brussels Office,) as
Operator of the Euroclear System or
Cedel S.A.)
By:_________________________________
A-2-2
<PAGE> 1
EXHIBIT 4.5
CERTIFICATE OF TRUST OF
SEMCO CAPITAL TRUST I
THIS Certificate of Trust of SEMCO Capital Trust I (the "Trust") is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a business trust under the Delaware Business Trust Act (12 Del.
C. ss 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate
of Trust is SEMCO Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are Bank One Delaware, Inc., 3 Christina
Centre, 201 North Walnut Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
BANK ONE DELAWARE, INC., not in its individual
capacity but solely as Trustee of the Trust
By: /s/ J. Michael Banas
---------------------------------------------
Name: J. Michael Banas,
Title: Vice President
/s/ Sebastian Coppola
-------------------------------------------------
Sebastian Coppola, as Administrative Trustee
/s/ Edric R. Mason, Jr.
--------------------------------------------------
Edric R. Mason, Jr., as Administrative Trustee
<PAGE> 1
EXHIBIT 4.6
CERTIFICATE OF TRUST OF
SEMCO CAPITAL TRUST II
THIS Certificate of Trust of SEMCO Capital Trust II (the "Trust") is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a business trust under the Delaware Business Trust Act (12 Del.
C ss 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate of
Trust is SEMCO Capital Trust II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are Bank One Delaware, Inc., 3 Christina
Centre, 201 North Walnut Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
BANK ONE DELAWARE, INC., not in its individual
capacity but solely as Trustee of the Trust
By: /s/ J. Michael Banas
------------------------------------------
Name: J. Michael Banas
Title: Vice President
/s/ Sebastian Coppola
-----------------------------------------------
Sebastian Coppola, as Administrative Trustee
/s/ Edric R. Mason
-----------------------------------------------
Edric R. Mason, Jr., as Administrative Trustee
<PAGE> 1
EXHIBIT 4.7
CERTIFICATE OF TRUST OF
SEMCO CAPITAL TRUST III
THIS Certificate of Trust of SEMCO Capital Trust III (the "Trust") is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a business trust under the Delaware Business Trust Act (12 Del.
C ss 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate of
Trust is SEMCO Capital Trust III.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are Bank One Delaware, Inc., 3 Christina
Centre, 201 North Walnut Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
BANK ONE DELAWARE, INC., not in its individual
capacity but solely as Trustee of the Trust
By: /s/ J. Michael Banas
------------------------------------------
Name: J. Michael Banas
Title: Vice President
/s/ Sebastian Coppola
-----------------------------------------------
Sebastian Coppola, as Administrative Trustee
/s/ Edric R. Mason
-----------------------------------------------
Edric R. Mason, Jr., as Administrative Trustee
<PAGE> 1
EXHIBIT 4.8
TRUST AGREEMENT
OF
SEMCO CAPITAL TRUST I
THIS TRUST AGREEMENT is made as of November 23, 1999 (this
"Agreement"), by and among SEMCO Energy, Inc., a Michigan corporation, as
depositor (the "Depositor"), Bank One Delaware, Inc., a Delaware corporation, as
trustee (the "Delaware Trustee"), Edric R. Mason, Jr., as trustee, and Sebastian
Coppola, as trustee (Edric R. Mason, Jr. and Sebastian Coppola being
collectively the "Administrative Trustees") (the Administrative Trustees and the
Delaware Trustee being collectively the "Trustees"). The Depositor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "SEMCO Capital Trust I"
(the "Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. Such amount shall constitute the initial trust estate.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. Section 3801, et seq. (the "Business Trust Act"), and that this
document constitute the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustees may approve.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement satisfactory to each such party to provide for the
contemplated operation of the Trust created hereby and the issuance of the Trust
Preferred Securities and Trust Common Securities referred to therein. Prior to
the execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect of the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise. Notwithstanding the
foregoing, the Trustees may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
4. The Depositor is hereby authorized, in its sole discretion, (i) to
file with the Securities and Exchange Commission (the "Commission") and to
execute, in the case of the 1933 Act Registration Statement and 1934 Act
Registration Statement, on behalf of the Trust, (a) the 1933 Act Registration
Statement, including pre-effective or post-effective amendments to such
Registration Statement, relating to the registration under the Securities Act of
1933, as amended (the "1933 Act"), of the Trust Preferred Securities of the
Trust, (b) any preliminary prospectus or prospectus or supplement thereto
relating to the Trust Preferred Securities required to be filed under the 1933
Act, and (c) if required, a Registration Statement on Form 8-A or other
appropriate form (the "Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the Trust
Preferred Securities of the Trust
<PAGE> 2
under the Securities Exchange Act of 1934, as amended; (ii) to file with the
NASDAQ National Market or any national exchange and execute on behalf of the
Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Trust Preferred Securities to be listed with the NASDAQ
National Market or any national exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Trust Preferred Securities
under the securities or "Blue Sky" laws of such jurisdictions as the Depositor,
on behalf of the Trust, may deem necessary or desirable; (iv) to execute,
deliver and perform on behalf of the Trust, an underwriting agreement with the
Depositor and the underwriter or underwriters of the Trust Preferred Securities
of the Trust; (v) to execute, deliver and perform a depository agreement with
the initial clearing agency, relating to the Trust Preferred Securities; and
(vi) to apply for and obtain a tax identification number for the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, PORTAL or state securities or
Blue Sky laws to be executed on behalf of the Trust by the Trustees, the
Trustees, in their capacity as trustees of the Trust, are hereby authorized and
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that Bank One Delaware, Inc., in
its capacity as trustee of the Trust, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, PORTAL or state securities or Blue
Sky laws. In connection with all of the foregoing, the Depositor hereby
constitutes and appoints Sebastian Coppola, as its true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and any 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be three and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, any entity which has its principal place of business in
the State of Delaware. Subject to the foregoing, the Depositor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
<PAGE> 3
7. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
8. The Delaware Trustee shall not have any of the powers or duties of
the Trustees set forth herein, except as required under the Business Trust Act.
The Delaware Trustee shall be a Trustee hereunder for the sole and limited
purpose of fulfilling the requirements of ss. 3807(a) of the Business Trust Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SEMCO Energy, Inc., as Depositor
By: /s/ William L. Johnson
----------------------------------
Name: William L. Johnson
Title: Chairman and Chief Executive Officer
Bank One Delaware, Inc.
By: /s/ J. Michael Banas
----------------------------------
Name: J. Michael Banas
Title: Authorized Officer
/s/ Edric R. Mason, Jr.
-------------------------
Edric R. Mason, Jr.,
as Administrative Trustee
/s/ Sebastian Coppola
-------------------------
Sebastian Coppola,
as Administrative Trustee
<PAGE> 1
EXHIBIT 4.9
TRUST AGREEMENT
OF
SEMCO CAPITAL TRUST II
THIS TRUST AGREEMENT is made as of November 23, 1999 (this
"Agreement"), by and among SEMCO Energy, Inc., a Michigan corporation, as
depositor (the "Depositor"), Bank One Delaware, Inc., a Delaware corporation, as
trustee (the "Delaware Trustee"), Edric R. Mason, Jr., as trustee, and Sebastian
Coppola, as trustee (Edric R. Mason, Jr. and Sebastian Coppola being
collectively the "Administrative Trustees") (the Administrative Trustees and the
Delaware Trustee being collectively the "Trustees"). The Depositor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "SEMCO Capital Trust II"
(the "Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. Such amount shall constitute the initial trust estate.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. Section 3801, et seq. (the "Business Trust Act"), and that this
document constitute the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustees may approve.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement satisfactory to each such party to provide for the
contemplated operation of the Trust created hereby and the issuance of the Trust
Preferred Securities and Trust Common Securities referred to therein. Prior to
the execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect of the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise. Notwithstanding the
foregoing, the Trustees may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
4. The Depositor is hereby authorized, in its sole discretion, (i) to
file with the Securities and Exchange Commission (the "Commission") and to
execute, in the case of the 1933 Act Registration Statement, and 1934 Act
Registration Statement, on behalf of the Trust, (a) the 1933 Act Registration
Statement, including pre-effective or post-effective amendments to such
Registration Statement, relating to the registration under the Securities Act of
1933, as amended (the "1933 Act"), of the Trust Preferred Securities of the
Trust, (b) any preliminary prospectus or prospectus or supplement thereto
relating to the Trust Preferred Securities required to be filed under the 1933
Act, and (c) if required, a Registration Statement on Form 8-A or other
appropriate form (the "Registration Statement") (including all pre-effective and
post-effective
<PAGE> 2
amendments thereto) relating to the registration of the Trust Preferred
Securities of the Trust under the Securities Exchange Act of 1934, as amended;
(ii) to file with the NASDAQ National Market or any national exchange and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Trust Preferred Securities to be listed with the
NASDAQ National Market or any national exchange; (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the Trust Preferred
Securities under the securities or "Blue Sky" laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or desirable; (iv) to
execute, deliver and perform on behalf of the Trust, an underwriting agreement
with the Depositor and the underwriter or underwriters of the Trust Preferred
Securities of the Trust; (v) to execute, deliver and perform a depository
agreement with the initial clearing agency, relating to the Trust Preferred
Securities; and (vi) to apply for and obtain a tax identification number for the
Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, PORTAL or state securities or
Blue Sky laws to be executed on behalf of the Trust by the Trustees, the
Trustees, in their capacity as trustees of the Trust, are hereby authorized and
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that Bank One Delaware, Inc., in
its capacity as trustee of the Trust, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, PORTAL or state securities or Blue
Sky laws. In connection with all of the foregoing, the Depositor hereby
constitutes and appoints Sebastian Coppola, as its true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and any 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be three and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, any entity which has its principal place of business in
the State of Delaware. Subject to the foregoing, the Depositor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
<PAGE> 3
7. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
8. The Delaware Trustee shall not have any of the powers or duties of
the Trustees set forth herein, except as required under the Business Trust Act.
The Delaware Trustee shall be a Trustee hereunder for the sole and limited
purpose of fulfilling the requirements of ss. 3807(a) of the Business Trust Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SEMCO Energy, Inc., as Depositor
By: /s/ William L. Johnson
----------------------------------
Name: William L. Johnson
Title: Chairman and Chief Executive Officer
Bank One Delaware, Inc.
By: /s/ J. Michael Banas
----------------------------------
Name: J. Michael Banas
Title: Authorized Officer
/s/ Edric R. Mason, Jr.
-------------------------
Edric R. Mason, Jr.,
as Administrative Trustee
/s/ Sebastian Coppola
-------------------------
Sebastian Coppola,
as Administrative Trustee
<PAGE> 1
EXHIBIT 4.10
TRUST AGREEMENT
OF
SEMCO CAPITAL TRUST III
THIS TRUST AGREEMENT is made as of November 23, 1999 (this
"Agreement"), by and among SEMCO Energy, Inc., a Michigan corporation, as
depositor (the "Depositor"), Bank One Delaware, Inc., a Delaware corporation, as
trustee (the "Delaware Trustee"), Edric R. Mason, Jr., as trustee, and Sebastian
Coppola, as trustee (Edric R. Mason, Jr. and Sebastian Coppola being
collectively the "Administrative Trustees") (the Administrative Trustees and the
Delaware Trustee being collectively the "Trustees"). The Depositor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "SEMCO Capital Trust III"
(the "Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. Such amount shall constitute the initial trust estate.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. Section 3801, et seq. (the "Business Trust Act"), and that this
document constitute the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustees may approve.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement satisfactory to each such party to provide for the
contemplated operation of the Trust created hereby and the issuance of the Trust
Preferred Securities and Trust Common Securities referred to therein. Prior to
the execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect of the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise. Notwithstanding the
foregoing, the Trustees may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
4. The Depositor is hereby authorized, in its sole discretion, (i) to
file with the Securities and Exchange Commission (the "Commission") and to
execute, in the case of the 1933 Act Registration Statement, and 1934 Act
Registration Statement, on behalf of the Trust, (a) the 1933 Act Registration
Statement, including pre-effective or post-effective amendments to such
Registration Statement, relating to the registration under the Securities Act of
1933, as amended (the "1933 Act"), of the Trust Preferred Securities of the
Trust, (b) any preliminary prospectus or prospectus or supplement thereto
relating to the Trust Preferred Securities required to be filed under the 1933
Act, and (c) if required, a Registration Statement on Form 8-A or other
appropriate form (the "Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the Trust
Preferred Securities of the Trust
<PAGE> 2
under the Securities Exchange Act of 1934, as amended; (ii) to file with the
NASDAQ National Market or any national exchange and execute on behalf of the
Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Trust Preferred Securities to be listed with the NASDAQ
National Market or any national exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Trust Preferred Securities
under the securities or "Blue Sky" laws of such jurisdictions as the Depositor,
on behalf of the Trust, may deem necessary or desirable; (iv) to execute,
deliver and perform on behalf of the Trust, an underwriting agreement with the
Depositor and the underwriter or underwriters of the Trust Preferred Securities
of the Trust; (v) to execute, deliver and perform a depository agreement with
the initial clearing agency, relating to the Trust Preferred Securities; and
(vi) to apply for and obtain a tax identification number for the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, PORTAL or state securities or
Blue Sky laws to be executed on behalf of the Trust by the Trustees, the
Trustees, in their capacity as trustees of the Trust, are hereby authorized and
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that Bank One Delaware, Inc., in
its capacity as trustee of the Trust, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, PORTAL or state securities or Blue
Sky laws. In connection with all of the foregoing, the Depositor hereby
constitutes and appoints Sebastian Coppola, as its true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and any 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be three and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, any entity which has its principal place of business in
the State of Delaware. Subject to the foregoing, the Depositor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
<PAGE> 3
7. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
8. The Delaware Trustee shall not have any of the powers or duties of
the Trustees set forth herein, except as required under the Business Trust Act.
The Delaware Trustee shall be a Trustee hereunder for the sole and limited
purpose of fulfilling the requirements of ss. 3807(a) of the Business Trust Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SEMCO Energy, Inc., as Depositor
By: /s/ William L. Johnson
------------------------------------------
Name: William L. Johnson
Title: Chairman and Chief Executive Officer
Bank One Delaware, Inc.
By: /s/ J. Michael Banas
------------------------------------------
Name: J. Michael Banas
Title: Authorized Officer
/s/ Edric R. Mason, Jr.
---------------------------------------------------
Edric R. Mason, Jr.,
as Administrative Trustee
/s/ Sebastian Coppola
---------------------------------------------------
Sebastian Coppola,
as Administrative Trustee
<PAGE> 1
EXHIBIT 4.11
FORM OF AMENDED & RESTATED TRUST AGREEMENT
SEMCO CAPITAL TRUST I
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
SEMCO ENERGY, INC., AS DEPOSITOR,
BANK ONE TRUST COMPANY, NA, AS PROPERTY TRUSTEE
BANK ONE DELAWARE, INC., AS DELAWARE TRUSTEE
AND
SEBASTIAN COPPOLA AND EDRIC R. MASON, JR.,
AS ADMINISTRATIVE TRUSTEES
DATED AS OF
----------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I Defined Terms........................................................................
Section 1.01 Definitions....................................................................
ARTICLE II Establishment of the Trust...........................................................
Section 2.01 Name...........................................................................
Section 2.02 Offices of the Trustees; Principal Place of Business...........................
Section 2.03 Initial Contribution of Trust Property; Organizational
Expenses.......................................................................
Section 2.04 Issuance of the Trust Preferred Securities.....................................
Section 2.05 Subscription and Purchase of Subordinated Debentures;
Issuance of the Trust Common Securities........................................
Section 2.06 Declaration of Trust...........................................................
Section 2.07 Authorization to Enter into Certain Transactions...............................
Section 2.08 Assets of Trust................................................................
Section 2.09 Title to Trust Property........................................................
Section 2.10 Mergers and Consolidations of the Trust........................................
ARTICLE III Payment Account......................................................................
Section 3.01 Payment Account................................................................
ARTICLE IV Distributions; Redemption............................................................
Section 4.01 Distributions .................................................................
Section 4.02 Redemption.....................................................................
Section 4.03 Subordination of Trust Common Securities.......................................
Section 4.04 Payment Procedures.............................................................
Section 4.05 Tax Returns and Reports........................................................
ARTICLE V Trust Securities Certificates .......................................................
Section 5.01 Initial Ownership..............................................................
Section 5.02 The Trust Securities Certificates..............................................
Section 5.03 Authentication of Trust Securities Certificates................................
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates........................................................
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates...................................................................
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
Section 5.06 Persons Deemed Securityholders.................................................
Section 5.07 Access to List of Securityholders' Names and Addresses.........................
Section 5.08 Maintenance of Office or Agency................................................
Section 5.09 Appointment of Paying Agent....................................................
Section 5.10 Ownership of Trust Common Securities by Depositor..............................
Section 5.11 Book-Entry Trust Preferred Securities Certificates; Common
Securities Certificate.........................................................
Section 5.12 Notices to Clearing Agency.....................................................
Section 5.13 Definitive Trust Preferred Securities Certificates.............................
Section 5.14 Rights of Securityholders......................................................
ARTICLE VI Acts of Securityholders; Meetings; Voting............................................
Section 6.01 Limitations on Voting Rights...................................................
Section 6.02 Notice of Meetings.............................................................
Section 6.03 Meetings of Trust Preferred Securityholders....................................
Section 6.04 Voting Rights..................................................................
Section 6.05 Proxies, etc...................................................................
Section 6.06 Securityholder Action by Written Consent.......................................
Section 6.07 Record Date for Voting and Other Purposes......................................
Section 6.08 Acts of Securityholders........................................................
Section 6.09 Inspection of Records..........................................................
ARTICLE VII Representations and Warranties of the Property Trustee
and Delaware Trustee...........................................................
Section 7.01 Representations and Warranties of the Property Trustee
and Delaware Trustee...........................................................
Section 7.02 Representations and Warranties of Depositor ...................................
ARTICLE VIII The Trustees.........................................................................
Section 8.01 Certain Duties and Responsibilities............................................
Section 8.02 Notice of Defaults.............................................................
Section 8.03 Certain Rights of Property Trustee.............................................
Section 8.04 Not Responsible for Recitals or Issuance of Securities.........................
Section 8.05 Trustee May Hold Securities....................................................
Section 8.06 Compensation; Fees; Indemnity..................................................
Section 8.07 Trustees Required; Eligibility.................................................
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
Section 8.08 Conflicting Interests..........................................................
Section 8.09 Co-Property Trustees and Separate Trustee......................................
Section 8.10 Resignation and Removal; Appointment of Successor..............................
Section 8.11 Acceptance of Appointment by Successor.........................................
Section 8.12 Merger, Conversion, Consolidation or Succession
to Business....................................................................
Section 8.13 Preferential Collection of Claims Against Depositor
or Trust.......................................................................
Section 8.14 Reports by Property Trustee....................................................
Section 8.15 Reports to the Property Trustee................................................
Section 8.16 Evidence of Compliance with Conditions Precedent...............................
Section 8.17 Number of Trustees.............................................................
Section 8.18 Delegation of Power............................................................
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders................................................................
ARTICLE IX Termination and Liquidation..........................................................
Section 9.01 Termination Upon Expiration Date...............................................
Section 9.02 Early Termination..............................................................
Section 9.03 Termination....................................................................
Section 9.04 Liquidation....................................................................
Section 9.05 Bankruptcy.....................................................................
ARTICLE X Miscellaneous Provisions.............................................................
Section 10.01 Guarantee by the Depositor.....................................................
Section 10.02 Limitation of Rights of Securityholders........................................
Section 10.03 Amendment......................................................................
Section 10.04 Separability...................................................................
Section 10.05 Governing Law..................................................................
Section 10.06 Notice of Deferral of Distribution.............................................
Section 10.07 Headings.......................................................................
Section 10.08 Notice and Demand..............................................................
Section 10.09 Agreement Not to Petition......................................................
Section 10.10 Conflict with Trust Indenture Act..............................................
Section 10.11 Successors.....................................................................
</TABLE>
<PAGE> 5
EXHIBIT A - Certificate of Trust
EXHIBIT B - Form of Expense Agreement
EXHIBIT C - Form of Trust Common Securities Certificate
EXHIBIT D - Form of Trust Preferred Securities Certificate
<PAGE> 6
SEMCO CAPITAL TRUST I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Act Trust Agreement
Section Section
- ------- -------
<S> <C>
Section 310(a)(1).................................... 8.07
(a)(2).......................................... 8.07
(a)(3).......................................... 8.09
(a)(4).......................................... Not Applicable
(b)............................................. 8.08
Section 311(a)....................................... 8.13
(b)............................................. 8.13
Section 312(a)....................................... 5.07
(b)............................................. 5.07
(c)............................................. 5.07
Section 313(a)....................................... 8.14
(a)(4).......................................... 8.14(b)
(b)............................................. 8.14(b)
(c)............................................. 8.14(c)
(d)............................................. 8.14(b), 8.14(c)
Section 3.14(a)...................................... 8.15
(b)............................................. Not Applicable
(c)(1).......................................... 8.15, 8.16
(c)(2).......................................... 8.16
(c)(3).......................................... 8.16
(d)............................................. Not Applicable
(e)............................................. 8.16
Section 315(a)....................................... 8.01
(b)............................................. 8.02, 8.14(b)
(c)............................................. 8.01(a)
(d)............................................. 8.01, 8.03
(e)............................................. Not Applicable
Section 316(a)....................................... Not Applicable
(a)(1)(A)....................................... 8.19
(a)(1)(B)....................................... 8.19
(a)(2).......................................... Not Applicable
(b)............................................. Not Applicable
(c)............................................. Not Applicable
Section 317(a)(1).................................... Not Applicable
(a)(2).......................................... Not Applicable
(b)............................................. 5.09
Section 318(a)....................................... 10.10
</TABLE>
Note: This Cross-Reference Table does not constitute part of the Trust
Agreement and shall not affect the interpretation of any of its terms and
provisions.
<PAGE> 7
AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of ____________,
1999 by and among (i) SEMCO Energy, Inc., a Michigan corporation (the
"Depositor" or the "Corporation"), (ii) Bank One Trust Company, NA, a national
banking association, as trustee (the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) Bank One Delaware, Inc., a corporation duly organized under the laws of
the State of Delaware, as Delaware trustee (the "Delaware Trustee" and in its
separate corporate and not in its capacity as Delaware Trustee, the "Delaware
Corporation"), (iv) Sebastian Coppola, an individual, and Edric R. Mason, Jr.,
an individual, as administrative trustees (each an "Administrative Trustee" and
together the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH:
WHEREAS, the Depositor and certain of the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the execution and filing with the Secretary of State of the State
of Delaware of the Certificate of Trust, dated __________ ___, 1999 (the
"Certificate of Trust") and by the entering into that certain Trust Agreement,
dated as of _______ ___, 1999 (the "Original Trust Agreement"), and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the addition of the Bank, as trustee of the Trust, (ii) the
acquisition by the Trust from the Depositor of all of the right, title and
interest in certain subordinated debentures of the Depositor, (iii) the issuance
of the Trust Common Securities by the Trust to the Depositor, and (iv) the
issuance and sale of the Trust Preferred Securities by the Trust pursuant to the
Underwriting Agreement.
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:
1
<PAGE> 8
ARTICLE I
DEFINED TERMS
Section 1.01 Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, an amount equal to the Additional
Interest (as defined in clause (ii) of the definition of "Additional Interest"
in the Subordinated Debenture Indenture) paid by the Depositor on a Like Amount
of Subordinated Debentures for such period.
"Administrative Trustee" means each of the individuals identified as an
"Administrative Trustee" in the preamble to this Trust Agreement solely in their
capacities as Administrative Trustees of the Trust formed and continued
hereunder and except as specifically provided to the contrary herein and not in
their individual capacities, or such trustee's successor(s) in interest in such
capacity, or any successor "Administrative Trustee" appointed as herein
provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, control
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of such Person in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging such
Person a bankrupt or insolvent, or approving as properly filed a petition
2
<PAGE> 9
seeking reorganization, arrangement, adjustment or composition of or in respect
of such Person under any applicable federal or state law, or appointing a
custodian, 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 for relief or any such other decree or order unstayed
and in effect for a period of 90 consecutive days; or
(ii) the commencement by such Person of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of such Person in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Corporation 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, or the authorization of any such action by the
board of directors of such Person.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Beneficiaries" has the meaning specified in Section 10.01.
"Board Resolution" means a resolution or a copy thereof certified by
the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors or a duly authorized committee
thereof and to be in full force and effect on the date of such certification,
and delivered to the Trustees.
"Book-Entry Trust Preferred Securities Certificates" means certificates
representing Trust Preferred Securities issued in global, fully registered form
to the Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii)
a day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office or the Indenture Trustee's principal corporate trust office is closed for
business.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. 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 which from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency pursuant to the rules of such Clearing Agency or an agreement
between the Clearing Agency and such Person in the customary form.
3
<PAGE> 10
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act then the body
performing such duties at such time.
"Corporate Trust Office" means the office of the Property Trustee
located in Detroit, Michigan at which its corporate trust business shall be
principally administered.
"Corporation" means SEMCO Energy, Inc., its successors and assigns.
"Debenture Indenture Event of Default" means an "Event of Default" as
defined in the Subordinated Debenture Indenture with respect to the Subordinated
Debentures.
"Debenture Indenture Redemption Date" means "Redemption Date", as
defined in the Subordinated Debenture Indenture.
"Definitive Trust Preferred Securities Certificates" means either or
both (as the context requires) of (i) Trust Preferred Securities Certificates
issued in certificated, fully registered form as provided in Section 5.11(a) and
(ii) Trust Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time.
"Delaware Corporation" means Bank One Delaware, Inc. in its
separate corporate capacity.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" and has the meaning specified in the preamble to this Trust Agreement
solely in its capacity as Delaware Trustee of the Trust formed and continued
hereunder and except as specifically provided to the contrary herein, not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware Trustee appointed as herein provided.
"Depositor" means SEMCO Energy, Inc., in its capacity as "Depositor"
under this Trust Agreement, its successors and assigns.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section 9.02.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of
4
<PAGE> 11
law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(i) the occurrence of a Debenture Indenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of 30
days; or
(iii) default by the Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, of any covenant or
warranty of the Trustees in this Trust Agreement (other than a covenant or
warranty a default in whose performance or breach is dealt with in clause (ii)
or (iii) above) and continuation of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Trustees by the Holders of at least 25% in Liquidation Amount of the Outstanding
Trust Preferred Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect to the Trust.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Corporation and the Trust, substantially in the form attached as
Exhibit B, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation, with a similar purpose and
effect.
"Extension Period" has the meaning specified in Section 4.01(b).
"Indenture Trustee" means the trustee under the Subordinated Debenture
Indenture.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Issue Date" means the date of the original issuance and delivery of
the Trust Securities by the Administrative Trustees.
"Legal Action" has the meaning specified in Section 2.07(A)(iv).
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation Amount
equal to the principal amount of Subordinated Debentures to be contemporaneously
redeemed in
5
<PAGE> 12
accordance with the Subordinated Debenture Indenture and the proceeds of which
will be used to pay the Redemption Price of such Trust Securities and (ii)
Subordinated Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Subordinated
Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Subordinated Debentures are
to be distributed to Holders of Trust Securities in connection with a
liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in Section 9.05.
"Obligations" has the meaning specified in Section 10.01.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Depositor, and
delivered to the appropriate Trustee. One of the officers signing an Officers'
Certificate to be delivered by the Depositor pursuant to Section 8.16 shall be
the principal executive, financial or accounting officer of the Depositor. An
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 such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in the Officers'
Certificate are based;
(c) a statement that, in the opinion of each such officer, he has made
such examination or investigation as is necessary to enable him 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.
"OID" means "original issue discount" as that term or any substantially
similar subsequent term is defined in the Internal Revenue Code of 1986, as
amended.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Trustees or the Depositor, but not an employee of the
Trust or the Trustees, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel pertaining to federal income tax matters may
rely on published rulings of the Internal Revenue Service.
"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 authenticated and delivered under this Trust Agreement, except:
(i) Trust Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the Administrative Trustees for
cancellation;
(ii) 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 or provision
therefor satisfactory to the Property Trustee has been made; and
(iii) Trust Preferred Securities in exchange for or in lieu of which
other Trust Preferred Securities have been authenticated and delivered pursuant
to this Trust Agreement; 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, whether of record
or beneficially, by the Depositor, the Holder of the Trust Common Securities,
any Administrative Trustee or any Affiliate of the Depositor or any
Administrative 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 which such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at any time when
all of the outstanding Trust Preferred Securities are owned by the Depositor,
the Holder of the Trust Common Securities, one or more Administrative 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 Administrative Trustees 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 5.09 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account established pursuant to Section 3.01 and maintained by the
Property Trustee for the benefit of the Securityholders in which all amounts
paid in respect of the Subordinated Debentures will be held and from which the
Property Trustee shall make payments to the Securityholders in accordance with
Section 4.01.
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"Person" means an individual, corporation, partnership, joint venture,
trust, estate, 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 formed and continued
hereunder and except as specifically provided to the contrary herein not in its
individual capacity, or its successor in interest in such capacity, or any
successor "Property Trustee" as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Indenture Redemption Date shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for redemption
of any Trust Security, the Liquidation Amount of such Trust Security, plus
accrued and unpaid Distributions to such date.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation with a similar purpose and effect.
"Security Register" and "Security Registrar" are described in Section
5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security is or Securities are registered in the Security Register; any such
Person is a beneficial owner within the meaning of the Delaware Business Trust
Act.
"Subordinated Debentures" means the $_________ aggregate principal
amount of the Depositor's Series _____ % Subordinated Debentures due _____,
_____ issued pursuant to the Subordinated Debenture Indenture.
"Subordinated Debenture Indenture" means the Subordinated Debenture
Indenture, dated as of ______________, between the Depositor and the Indenture
Trustee, as supplemented by the Supplemental Indenture.
"Successor Securities" has the meaning specified in Section 2.10.
"Supplemental Indenture" means the Indenture, dated as of
_________________, by and between the Depositor and the Indenture Trustee for
the purpose of supplementing the Subordinated Debenture Indenture entered into
in connection with the Subordinated Debentures.
"Trust" means the Delaware business trust continued hereby and
identified on the cover page to this Trust Agreement.
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"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 an
purposes of this Amended and Restated Trust Agreement and any modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust Agreement and
any such modification, amendment or supplement, respectively.
"Trust Common Securities Certificate" means a certificate evidencing
ownership of a Trust Common Security or Securities, substantially in the form
attached as Exhibit C.
"Trust Common Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount of $25 and
having the rights provided therefor in this Trust Agreement, including the right
to receive Distributions and a Liquidation Distribution as provided herein.
"Trustees" means the Persons identified as "Trustees" in the preamble
to this Trust Agreement solely in their capacities as Trustees of the Trust
formed hereunder and except as specifically provided to the contrary herein not
in their individual capacities, or any successor in interest in such capacity,
or any successor trustee appointed as herein provided.
"Trust Guarantee" means the Trust Guarantee Agreement executed and
delivered by the Corporation and Bank One Trust Company, NA, as Guarantee
Trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Trust Preferred Securities, as
amended from time to time.
"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 a Trust Preferred Security or Securities, substantially in the form
attached as Exhibit D.
"Trust Preferred Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount of $25 and
having rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Trust Property" means (i) the Subordinated Debentures, (ii) any cash
on deposit in, or amounts owing to, the Payment Account, and (iii) all proceeds
and rights in respect of the foregoing and any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to this
Trust Agreement.
"Trust Securities Certificate" means any one of the Trust Common
Securities Certificates or the Trust Preferred Securities Certificates.
"Trust Security" means any one of the Trust Common Securities or the
Trust Preferred Securities.
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"Underwriting Agreement" means the Underwriting Agreement, dated as of
___________________ among the Trust, the Depositor and the underwriters named
therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.01 Name. The Trust continued hereby shall be known as "SEMCO
Capital Trust I" in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued. The Administrative Trustees may change the name of the
Trust from time to time following written notice to the Holders.
Section 2.02 Offices of the Trustees; Principal Place of Business. The
address of the Property Trustee is Bank One Trust Company, NA, Corporate Trust
Administration, 11th Floor - Suite 8110, 611 Woodward Avenue, Detroit, Michigan
48226, or at such other address as the Property Trustee may designate by written
notice to the Securityholders and the Depositor. The principal place of business
of the Delaware Trustee is Bank One Delaware, Inc., 3 Christina Centre, 201
N. Walnut St., Wilmington, Delaware 19801, or at such other address in Delaware
as the Delaware Trustee may designate by notice to the Depositor. The address of
the Administrative Trustees is c/o SEMCO Energy, Inc., 405 Water Street, P.O.
Box 5026, Port Huron, Michigan 48061-5026, Attention: Edric R. Mason, Jr. The
principal place of business of the Trust is c/o SEMCO Energy, Inc., 405 Water
Street, P.O. Box 5026, Port Huron, Michigan 48061-5026. The Depositor may change
the principal place of business of the Trust at any time by giving notice
thereof to the Trustees.
Section 2.03 Initial Contribution of Trust Property; Organizational
Expenses. The Trustees acknowledge 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 the Trustees,
promptly reimburse the Trustees for any such expenses paid by the Trustees. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.04 Issuance of the Trust Preferred Securities.
Contemporaneously with the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall execute 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, in an aggregate amount of Trust Preferred Securities having an aggregate
Liquidation Amount of $_________ (the "Trust Preferred Securities") against
receipt of the aggregate purchase price of such Trust Preferred Securities of
$__________, which amount the Administrative Trustees shall promptly deliver to
the Property Trustee.
Section 2.05 Subscription and Purchase of Subordinated Debentures;
Issuance of the Trust Common Securities. Contemporaneously with the execution
and delivery of this Trust Agreement, the Administrative Trustees, on behalf of
the Trust, shall execute and deliver to the Depositor Trust Common Securities
Certificates, registered in the name of the Depositor, in an
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aggregate amount of Trust Common Securities having an aggregate Liquidation
Amount of $__________ against payment by the Depositor of such amount.
Contemporaneously therewith, the Administrative Trustees, on behalf of the
Trust, shall subscribe to and purchase from the Depositor Subordinated
Debentures, registered in the name of the Property Trustee, on behalf of the
Trust and the Holders, and having an aggregate principal amount equal to
$___________ and, in satisfaction of the purchase price for such Subordinated
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $___________.
Section 2.06 Declaration of Trust. The exclusive purposes and functions
of the Trust are (i) to issue and sell the Trust Securities, (ii) to use the
proceeds from such sale to acquire the Subordinated Debentures, and (iii) to
engage in only those other activities necessary, appropriate, convenient or
incidental thereto. The Depositor hereby appoints each of the Bank, the Delaware
Trustee, Sebastian Coppola, and Edric R. Mason, Jr., as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth herein. The
Property Trustee hereby declares that it will hold the Trust Property upon and
subject to the conditions set forth herein subject to the conditions set forth
herein for the benefit of the Trust and the Securityholders. The Trustees shall
have all rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes of the Trust. Except
as may be required under the Delaware Business Trust Act, the Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of any other Trustee set forth
herein. The Delaware Trustee shall be one of the Trustees for the sole and
limited purpose of fulfilling the requirements of Section 3807(a) of the
Delaware Business Trust Act. The Delaware Trustee, as the trustee under the
Original Trust Agreement, has filed the Certificate of Trust of the Trust with
the office of the Secretary of State of the State of Delaware, a copy of which
is attached hereto as Exhibit A, and such filing is hereby confirmed and
ratified.
Section 2.07 Authorization to Enter into Certain Transactions. The
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Trust Agreement. Subject to the limitations set forth in paragraph (C) of
this Section, and in accordance with the following paragraphs (A) and (B), the
Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express (in the case of the Property Trustee) or implied, otherwise granted to
the Trustees under this Trust Agreement, and to perform all acts in furtherance
thereof, including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees, acting singly
or jointly, shall have the exclusive power, duty and authority to act on behalf
of the Trust with respect to the following matters:
(i) to acquire the Subordinated Debentures with the proceeds of the
sale of the Trust Securities; provided, however, the Administrative Trustees
shall cause legal title to all of the Subordinated Debentures to be vested in,
and the Subordinated Debentures to be held of record in the name of, the
Property Trustee for the benefit of the Trust and the Holders of the Trust
Securities;
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(ii) to deliver to the Depositor and the Property Trustee prompt
written notice of the occurrence of any Special Event (as defined in the
Supplemental Indenture) and to take any ministerial actions in connection
therewith; provided that the Administrative Trustees shall consult with the
Depositor and the Property Trustee before taking or refraining to take any
ministerial action in relation to a Special Event;
(iii) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including for the
purposes of Section 316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions, and exchanges, and to issue relevant
notices to Holders of the Trust Securities as to such actions and applicable
record dates;
(iv) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 2.07(B)(v), the Property Trustee
has the power to bring such Legal Action;
(v) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(vi) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(vii) to give the certificate to the Property Trustee required by
Section 314(a)(4) of the Trust Indenture Act, which certificate may be executed
by any Administrative Trustee;
(viii) to take all actions and perform such duties as may be required
of the Administrative Trustees pursuant to the terms of this Trust Agreement;
(ix) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Trust
Securities or to enable the Trust to effect the purposes for which the Trust has
been created;
(x) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Administrative Trustees, on
behalf of the Trust;
(xi) to issue and sell the Trust Securities;
(xii) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Expense Agreement and such other agreements
as may be necessary or desirable in connection with the consummation hereof;
(xiii) to assist in the registration of the Trust Preferred Securities
under the Securities Act and under state securities or blue sky laws, and the
qualification of the Trust Agreement as a trust indenture under the Trust
Indenture Act;
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(xiv) to assist in the listing of the Trust Preferred Securities upon
the NASDAQ National Market and such securities exchange or exchanges as shall be
determined by the Depositor and, if required, the registration of the Trust
Preferred Securities under the Exchange Act, and the preparation and filing of
all periodic and other reports and other documents pursuant to the foregoing;
(xv) to send notices (other than notices of default) and other
information regarding the Trust Securities and the Subordinated Debentures to
the Securityholders in accordance with this Trust Agreement;
(xvi) to appoint a Paying Agent (subject to Section 5.09),
authenticating agent and Security Registrar in accordance with this Trust
Agreement;
(xvii) to register transfers of the Trust Securities in accordance
with this Trust Agreement;
(xviii) to assist in the winding up of the affairs of and termination
of the Trust as provided in this Trust Agreement; and
(xix) to take any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
(B) As among the Trustees, the Property Trustee shall have the
exclusive power, duty and authority to act on behalf of the Trust with respect
to the following matters:
(i) engage in such ministerial activities as shall be necessary or
appropriate to effect promptly the redemption of the Trust Securities to the
extent the Subordinated Debentures are redeemed or mature;
(ii) upon notice of distribution issued by the Administrative
Trustees in accordance with the terms of this Trust Agreement, engage in such
ministerial activities as shall be necessary or appropriate to effect promptly
the distribution pursuant to the terms of this Trust Agreement of Subordinated
Debentures to Holders of Trust Securities;
(iii) subject to the terms hereof, exercise all of the rights, powers
and privileges of a holder of the Subordinated Debentures under the Subordinated
Debenture Indenture and, if an Event of Default occurs and is continuing,
enforce for the benefit of, and subject to the rights of, the Holders of the
Trust Securities, its rights as holder of the Subordinated Debentures under the
Subordinated Debenture Indenture;
(iv) take all actions and perform such duties as may be specifically
required of the Property Trustee pursuant to the terms of this Trust Agreement;
(v) take any Legal Action which arises out of or in connection with
an Event of Default or the Property Trustee's duties and obligations under this
Trust Agreement, the Delaware Business Trust Act or the Trust Indenture Act;
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(vi) the establishment and maintenance of the Payment Account;
(vii) the receipt of and holding of legal title to the Subordinated
Debentures as described herein;
(viii) the collection of interest, principal and any other payments
made in respect of the Subordinated Debentures in the Payment Account;
(ix) the distribution of amounts received in the Payment Account and
owed to the Securityholders in respect of the Trust Securities;
(x) the sending of notices of default and other information
regarding the Trust Securities and the Subordinated Debentures to the
Securityholders in accordance with this Trust Agreement;
(xi) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(xii) the winding up of the affairs of and termination of the Trust
as provided in this Trust Agreement, and the preparation, execution and filing
of the certificate of cancellation with the Secretary of State of the State of
Delaware; and
(xiii) the taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary, appropriate,
convenient or advisable to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the effect of any such
action on any particular Securityholder).
(C) So long as this Trust Agreement remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activity or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees acting on behalf of the Trust
shall not (i) acquire any investments or engage in any activities not authorized
by this Trust Agreement, (ii) sell, assign, transfer, exchange, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify as a grantor
trust for United States federal income tax purposes, (iv) incur any indebtedness
for borrowed money, (v) take or consent to any action that would result in the
placement of a Lien on any of the Trust Property, (vi) issue any securities
other than the Trust Securities, or (vii) have any power to, or agree to any
action by the Depositor that would, vary the investment (within the meaning of
Treasury Regulation Section 301.7701-4(c)) of the Trust or of the
Securityholders. The Trustees shall defend all claims and demands of all Persons
at any time claiming any Lien on any of the Trust Property adverse to the
interest of the Trust or the Securityholders in their capacity as
Securityholders.
(D) In connection with the issue and sale of the Trust Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
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(i) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 under the Securities Act in relation to the
Trust Preferred Securities, including any amendments thereto;
(ii) to determine the states in which to take appropriate action to
qualify or register for sale all or part of the Trust Preferred Securities and
to do any and all such acts, other than actions which must be taken by or on
behalf of the Trust, and advise the Trustees of actions they must take on behalf
of the Trust, and prepare for execution and filing any documents to be executed
and filed by the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of any such
states;
(iii) to prepare for filing by the Trust an application to any other
national stock exchange or the NASDAQ National Market for listing upon notice of
issuance of any Trust Preferred Securities;
(iv) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the Trust
Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto;
(v) to negotiate the terms of the Underwriting Agreement providing
for the sale of the Trust Preferred Securities and to execute, deliver and
perform the Underwriting Agreement on behalf of the Trust;
(vi) to negotiate the terms of an agreement with the Depository
Trust Company relating to the Trust Preferred Securities and to execute, deliver
and perform the agreement on behalf of the Trust; and
(vii) any other actions necessary, incidental, appropriate or
convenient to carry out any of the foregoing activities.
(E) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act,
or taxed as other than a grantor trust for United States federal income tax
purposes and so that the Subordinated Debentures will be treated as indebtedness
of the Depositor for United States federal income tax purposes. In this
connection, the Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate of Trust or
this Trust Agreement, that each of the Depositor and the Administrative Trustees
determines in its discretion to be necessary or desirable for such purposes, as
long as such action does not materially and adversely affect the interests of
the Holders of the Trust Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust shall consist of
the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Securityholders and the Trust in accordance with this Trust Agreement. The
right, title and interest of the Property Trustee to the Subordinated
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Debentures shall vest automatically in each Person who may thereafter be
appointed as Property Trustee in accordance with the terms hereof. Such vesting
and cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered.
Section 2.10 Mergers and Consolidations of the Trust. The Trust shall
not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to any
corporation or other entity, except as described below. The Trust may at the
request of the Corporation, with the consent of the Administrative Trustees and,
unless an Event of Default shall have occurred and be continuing, without the
consent of the Holders, the Property Trustee or the Delaware Trustee,
consolidate, amalgamate, merge with or into, or be replaced by a trust organized
as such under the laws of any state; provided that (i) such successor entity
either (x) expressly assumes all of the obligations of the Trust with respect to
the Trust Securities or (y) substitutes for the Trust Securities other
securities having substantially the same terms as the Trust Securities (herein
referred to as the "Successor Securities") so long as the Successor Securities
rank the same as the Trust Securities rank in priority with respect to
Distributions and payments upon liquidation, redemption and otherwise, (ii) the
Corporation expressly appoints a trustee of such successor entity possessing
substantially the same powers and duties as the Property Trustee as the holder
of legal title to the Subordinated Debentures, (iii) the Trust Preferred
Securities or any Successor Securities are listed, or any Successor Securities
will be listed upon notification of issuance, on any national securities
exchange or other organization on which the Trust Preferred Securities are then
listed, (iv) such merger, consolidation, amalgamation or replacement does not
cause the Trust Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such consolidation, amalgamation, merger or replacement does not adversely
affect the rights, preferences and privileges of the Holders of the Trust
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 consolidation, amalgamation, merger or replacement,
the Corporation and the Property Trustee have received an Opinion of Counsel
experienced in such matters to the effect that (A) such consolidation,
amalgamation, merger or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Securities (including any
Successor Securities) in any material respect, and (B) following such
consolidation, amalgamation, merger or replacement, neither the Trust nor such
successor entity will be required to register as an investment company under the
Investment Company Act, and (viii) the Corporation owns all of the common
securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Trust Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of 100% in Liquidation Amount of the Trust
Securities, consolidate, amalgamate, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or the successor entity to be classified as
other than a grantor trust for United States federal income tax purposes.
ARTICLE III
PAYMENT ACCOUNT
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Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and an agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the 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 principal or interest on, and any other payments
or proceeds with respect to, the Subordinated Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 4.01 Distributions.
(a) Distributions on the Trust Securities shall be cumulative and
accrue from the Issue Date and, except in the event that the Depositor exercises
its right to extend the interest payment period for the Subordinated Debentures
pursuant to Section 104 of the Supplemental Indenture, shall be payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing on __________, ____. If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed at a
rate of _____% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any full quarterly period shall be computed
on the basis of twelve 30-day months and a 360-day year. If the interest payment
period for the Subordinated Debentures is extended pursuant to Section 104 of
the Supplemental Indenture (an "Extension Period"), then the rate per annum at
which Distributions on the Trust Securities accumulate shall be increased by an
amount such that the aggregate amount of Distributions that accumulate on all
Trust Securities during any such Extension Period is equal to the aggregate
amount of interest (including interest payable on unpaid interest at the
percentage rate per annum set forth above, compounded quarterly, to the extent
permitted by applicable law) that accrues during any such Extension Period on
the Subordinated Debentures. The payment of such deferred interest, together
with interest thereon, will be distributed, if and to the extent funds are
legally available
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therefor, to the Holders of the Trust Securities (as they appear on the books
and records of the Trust on the Record Date next following the termination of
such Extension Period) as received at the end of any Extension Period. The
amount of Distributions payable for any period shall include the Additional
Amounts, if any.
(c) Distributions on the Trust Securities shall be made and shall
be deemed payable on each Distribution Date only to the extent that the Trust
has legally and immediately available funds in the Payment Account for the
payment of such Distributions.
(d) Distributions (including Additional Amounts, if any) on the
Trust Securities on each Distribution Date shall be payable to the Holders
thereof as they appear on the Security Register for the Trust Securities on the
relevant record date, which shall be the close of business on the fifteenth
calendar day prior to the relevant Distribution Date. Each Trust Security, upon
registration of transfer of or in exchange for or in lieu of any other Trust
Security, shall carry the rights of Distributions accrued (including Additional
Amounts, if any) and unpaid, and to accrue (including Additional Amounts, if
any), which were carried by such other Trust Security.
Section 4.02 Redemption.
(a) On each Redemption Date with respect to the Subordinated
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. Any notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the total Liquidation Amount of the Trust Securities to be redeemed;
and
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and the
Distributions thereon will cease to accrue on and after such date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Subordinated Debentures. Redemptions of the Trust Securities shall
be made and the Redemption Price shall be deemed payable on each Redemption Date
only to the extent that the Trust has funds legally and immediately available in
the Payment Account for the payment of such Redemption Price.
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(d) If the Property Trustee gives a notice of redemption in respect
of any Trust Preferred Securities which notice when given shall become
irrevocable, then, by 2:00 P.M. New York City time, on the Redemption Date,
subject to Section 4.02(c), the Property Trustee will, so long as the Trust
Preferred Securities are in book-entry only form, irrevocably deposit with the
Clearing Agency for the Trust Preferred Securities funds sufficient to pay the
applicable Redemption Price. If the Trust Preferred Securities are not in
book-entry only form, the Property Trustee, subject to Section 4.02(c), shall
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable instructions to pay
the Redemption Price to the Holders thereof upon surrender of their Trust
Preferred Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Security Register for the Trust Securities on the relevant record
dates for the related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then immediately prior to the close
of business on the date of such deposit, all rights of Securityholders holding
Trust Securities so called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price, but without interest, and such
Securities will cease to be outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, payment of such Redemption Price shall be made on the immediately
preceding Business, Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
Trust Securities is improperly withheld or refused and not paid either by the
Trust or by the Depositor pursuant to the Trust Guarantee, Distributions on such
Trust Securities will continue to accrue at the then applicable rate, from such
Redemption Date originally established by the Trust for such Trust Preferred
Securities to the date such Redemption Price is actually paid.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the recordholders thereof as they appear on the Security Register for
the Trust Securities on the relevant record date, which shall be the close of
business on the fifteenth calendar day prior to the Redemption Date.
(f) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated 3% to the Trust Common Securities
and 97% to the Trust Preferred Securities, with such adjustments that each
amount so allocated shall be divisible by $25. The particular Trust Preferred
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding Trust Preferred
Securities not previously called for redemption, by such method as the Property
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to $25 or integral multiples thereof of the
Liquidation Amount of Trust Preferred Securities of a denomination larger than
$25); provided, however, that before undertaking redemption of the Trust
Preferred Securities on other than a pro rata basis, the Property Trustee shall
have received an Opinion of Counsel that the status of the Trust as a grantor
trust for United States federal income tax purposes would not be adversely
affected. The Property
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Trustee shall promptly notify the Security Registrar in writing of the Trust
Preferred Securities selected for redemption and, in the case of any Trust
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of Trust
Preferred Securities shall relate, in the case of any Trust Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Trust Preferred Securities which has been or is to be redeemed.
(g) Subject to the foregoing provisions of this Section 4.02 and to
applicable law (including, without limitation, United States federal securities
laws), the Corporation or its Affiliates may, at any time and from time to time,
purchase outstanding Trust Preferred Securities by tender, in the open market or
by private agreement.
Section 4.03 Subordination of Trust Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made pro rata based on the respective Liquidation Amounts
of the applicable Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date a Debenture Indenture Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of, any Trust Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Trust Common Securities, shall be made unless payment in
full in cash of all accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Trust Preferred Securities for all
distribution periods terminating on or prior thereto, or in the case of payment
of the Redemption Price the full amount of such Redemption Price on all
Outstanding Trust Preferred Securities, shall have been made or provided for,
and in funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Trust
Preferred Securities then due and payable.
(b) In the case of the occurrence of any Debenture Indenture Event
of Default, the Holder of Trust Common Securities will be deemed to have waived
any such Event of Default under this Trust Agreement until the effect of all
such Events of Default with respect to the Trust Preferred Securities have been
cured, waived or otherwise eliminated. Until any such Events of Default under
this Trust Agreement with respect to the Trust Preferred Securities have been so
cured, waived or otherwise eliminated, the Property Trustee shall act solely on
behalf of the Holders of the Trust Preferred Securities and not the Holder of
the Trust Common Securities, and only the Holders of the Trust Preferred
Securities will have the right to direct the Property Trustee to act on their
behalf.
Section 4.04 Payment Procedures. Payments in respect of the Trust
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Security Register or, if
the Trust Preferred Securities are held by a Clearing Agency, such Distributions
shall be made to the Clearing Agency, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable distribution dates.
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Payments in respect of the Trust Common Securities shall be made in such manner
as shall be mutually agreed between the Property Trustee and the Holder of the
Trust Common Securities.
Section 4.05 Tax Returns and Reports. The Administrative Trustee(s)
shall prepare (or cause to be prepared), at the Depositor's expense, 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. The Administrative
Trustee(s) shall provide or cause to be provided on a timely basis to each
Holder any Internal Revenue Service form required to be so provided in respect
of the Trust Securities.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.01 Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.03 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
Section 5.02 The Trust Securities Certificates. Each of the Trust
Preferred and Trust Common Securities Certificates shall be issued by the
Administrative Trustees in minimum denominations of $25 and integral multiples
in excess thereof. The Trust Securities Certificates shall be executed on behalf
of the Trust by manual or facsimile signature of at least one Administrative
Trustee. Trust Securities Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Trust Securities Certificates or did not
hold such offices at the date of authentication and delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04.
Section 5.03 Authentication of Trust Securities Certificates. On the
Issue Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust, authenticated and delivered to
or upon the written order of the Depositor signed by its Chairman of the Board,
its President or any Vice President, without further corporate action by the
Depositor, in authorized denominations. No Trust Securities Certificate shall
entitle its Holder to any benefit under this Trust Agreement, or shall be valid
for any purpose, unless there shall appear on such Trust Securities Certificate
a certificate of authentication substantially in the form set forth in Exhibit D
or Exhibit C, as applicable, executed by at least one Administrative Trustee by
manual signature; such authentication shall constitute conclusive evidence that
such Trust Securities Certificate shall have been duly authenticated and
delivered hereunder. All Trust Securities Certificates shall be dated the date
of their authentication.
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Section 5.04 Registration of Transfer and Exchange of Trust Preferred
Securities Certificates. The Security Registrar shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 5.08, a Security Register
in which, subject to such reasonable regulations as it may prescribe, the
Security Registrar shall provide for the registration of Trust Preferred
Securities Certificates and the Trust Common Securities Certificates (subject to
Section 5.10 in the case of the Trust Common Securities Certificates) and
registration of transfers and exchanges of Trust Preferred Securities
Certificates as herein provided. The Property Trustee shall be the initial
Security Registrar.
Upon surrender for registration of transfer of any Trust Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees shall execute, authenticate 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 authentication by the
Administrative Trustee or Trustees. The Security 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 5.08.
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 Administrative Trustees and
the Security Registrar duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Trust Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Security Registrar 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 Security Registrar
or the Administrative Trustees 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 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Security Registrar, or if the Security Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Security
Registrar and the Administrative Trustees 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 Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees or any one of them on behalf of the Trust
shall execute and authenticate and make available for delivery, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Security
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an
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ownership interest in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Trust Securities Certificate shall be found at any
time.
Section 5.06 Persons Deemed Securityholders. Prior to due presentation
of a Trust Securities Certificate for registration of transfer, the Trustees or
the Security Registrar shall treat the Person in whose name any Trust Securities
Certificate shall be registered in the Security Register as the owner of such
Trust Securities Certificate for the purpose of receiving Distributions (subject
to Section 4.01(d)) and for all other purposes whatsoever, and neither the
Trustees nor the Security Registrar shall be bound by any notice to the
contrary.
Section 5.07 Access to List of Securityholders' Names and Addresses.
The Administrative Trustees shall furnish or cause to be furnished to (i) the
Depositor and the Property Trustee semi-annually, not later than June 1 and
December 1 in each year and (ii) the Depositor or the Property Trustee, as the
case may be, within 30 days after receipt by any Administrative Trustee of a
request therefor from the Depositor or the Property Trustee, as the case may be,
in writing, a list, in such form as the Depositor or the Property Trustee, as
the case may be, may reasonably require, of the names and addresses of the
Securityholders as of a date not more than 15 days prior to the time such list
is furnished; provided that the Administrative Trustees shall not be obligated
to provide such list at any time such list does not differ from the most recent
list given to the Depositor and the Property Trustee by the Administrative
Trustees or at any time the Property Trustee is the Security Registrar. If three
or more Securityholders or one or more Holders of Trust Securities Certificates
evidencing not less than 25% of the outstanding Liquidation Amount apply in
writing to the Administrative Trustees, and such application states that the
applicants desire to communicate with other Securityholders with respect to
their rights under this Trust Agreement or under the Trust Securities
Certificates and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Administrative Trustees
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Securityholders. Each Holder, by receiving and holding a Trust Securities
Certificate, shall be deemed to have agreed not to hold either the Depositor or
the Administrative Trustees accountable by reason of the disclosure of its name
and address, regardless of the source from which such information was derived.
Section 5.08 Maintenance of Office or Agency. The Administrative
Trustees shall maintain in the Borough of Manhattan, New York, 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 Trustees in respect of the Trust Securities Certificates
may be served. The Administrative Trustees initially designate Bank One Trust
Company, NA, c/o First Chicago Trust Company of New York, 14 Wall Street, 8th
Floor, Window 2, New York, New York 10005 as the principal agency for such
purposes. The Administrative Trustees shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Security Register or any such office or agency.
Section 5.09 Appointment of Paying Agent. The Paying Agent shall make
Distributions and other payments provided hereby to Securityholders from the
Payment Account and shall report the amounts of such Distributions and payments
to the Administrative Trustees and if such Paying Agent shall be other than the
Property Trustee to the Property
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Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account for the purpose of making the Distributions and payments
provided hereby. The Administrative Trustees may revoke such power and remove
the Paying Agent if such Trustees determine in their 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
Property Trustee, and it may choose any co-paying agent that is acceptable to
the Administrative Trustees and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees and the Depositor. In the event that a Paying Agent
shall resign or be removed, the Administrative Trustees shall appoint a
successor that is acceptable to the Depositor to act as Paying Agent (which
shall be a bank or trust company). The Administrative Trustees shall cause such
successor Paying Agent or any additional Paying Agent appointed by the
Administrative Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Securityholders in trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply to
the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee 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 Ownership of Trust Common Securities by Depositor. On the
Issue Date, the Depositor shall acquire, and thereafter retain, beneficial and
record ownership of the Trust Common Securities. Any attempted transfer of the
Trust Common Securities, except for transfers by operation of law or to an
Affiliate of the Depositor or a permitted successor under Section 801 of the
Subordinated Debenture Indenture, shall be void. The Administrative Trustees
shall cause each Trust Common Securities Certificate issued to the Depositor and
its permitted transferees to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST AGREEMENT REFERRED TO HEREIN".
Section 5.11 Book-Entry Trust Preferred Securities Certificates; Trust
Common Securities Certificate.
(a) 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 Security
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no 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 5.13. Unless and until Definitive
Trust Preferred Securities Certificates have been issued to Owners pursuant to
Section 5.13:
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(i) the provisions of this Section 5.11(a) shall be in full force
and effect;
(ii) the Security Registrar 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 principal of and interest on the Book-Entry Trust Preferred Securities 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;
(iii) to the extent that the provisions of this Section conflict with
any other provisions of this Trust Agreement, the provisions of this Section
shall control;
(iv) 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, agreements between such Owners and
the Clearing Agency and/or the Clearing Agency Participants and the applicable
rules of the Clearing Agency. Unless and until Definitive Trust Preferred
Securities Certificates are issued pursuant to Section 5.13, the 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; and
(v) whenever this Trust Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Trust Preferred
Securities Certificates evidencing a specified percentage of the aggregate
Liquidation Amount, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such effect
from Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
applicable class of Trust Preferred Securities Certificates and has delivered
such instructions to the Trustees.
(b) A single Trust Common Securities Certificate representing the
Trust Common Securities shall be issued to the Depositor in the form of a
definitive Trust Common Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent 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 5.13, 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 5.13 Definitive Trust Preferred Securities Certificates. If (i)
the Depositor advises the Trustees 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 within 90 days of receipt by the Depositor of such
written advice, or (ii) the Depositor at its option advises the Trustees in
writing that it elects to terminate the book-entry system through the Clearing
Agency, then the Administrative Trustees shall notify the Clearing Agency and
Holders of the Trust Preferred Securities. Upon surrender to the Administrative
Trustees of the typewritten Trust Preferred Securities
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Certificate or Certificates representing the Book-Entry Trust Preferred
Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees or any one of them shall execute and
authenticate the Definitive Trust Preferred Securities Certificates in
accordance with the instructions of the Clearing Agency. Neither the Security
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 Trustees 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
Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
Section 5.14 Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than the undivided beneficial ownership interest in
the assets of the Trust conferred by their Trust Securities, and they shall have
no right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or other 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. Except as
otherwise provided in the Expense Agreement and Section 10.01 hereof with
respect to the Depositor, the Holders of the Trust Securities 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.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.10 or Section
10.03 of this Trust Agreement, in the Subordinated Debenture Indenture, 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
Securities Certificates, be construed so as to constitute the Securityholders
from time to time as joint venturers, partners or members of an association.
(b) So long as any Subordinated Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
executing any trust or power conferred on the Indenture Trustee with respect to
such Subordinated Debentures, (ii) consent to waive any past default which is
waivable under Section 513 of the Subordinated Debenture Indenture, (iii)
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exercise any right to rescind or annul a declaration that the principal of all
the Subordinated Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Subordinated Debenture Indenture
or the Subordinated Debentures, where such consent shall be required, or to any
other action, as holder of the Subordinated Debentures, under the Subordinated
Debenture Indenture, without, in each case, obtaining the prior approval of the
Holders of at least 66-2/3% in Liquidation Amount of the Outstanding Trust
Preferred Securities; provided, however, that where a consent under the
Subordinated Debenture Indenture would require the consent of each holder of
Subordinated Debentures affected thereby, no such consent shall be given by the
Trustees without the prior written consent of each Holder of Trust Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Trust Preferred Securities, except pursuant
to a subsequent vote of the Holders of Trust Preferred Securities. The Property
Trustee shall notify all Holders of the Trust Preferred Securities of any notice
of default received from the Indenture Trustee with respect to the Subordinated
Debentures.
(c) If any proposed amendment to the Trust Agreement provides for,
or the Trustees otherwise propose to effect, (i) any action that would adversely
affect the powers, preferences or special rights of the Trust Preferred
Securities, whether by way of amendment to this 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 66-2/3% in Liquidation Amount of the
Outstanding Trust Preferred Securities.
(d) Notwithstanding that holders of Trust Preferred Securities are
entitled to vote under the circumstances described in Section 6.01(b) and
6.01(c), any of the Trust Preferred Securities that are owned (whether of record
or beneficially) by the Corporation, the Administrative Trustees or any
Affiliate of the Corporation or any Administrative Trustee shall, for purposes
of such vote, be treated as if they were not outstanding.
Section 6.02 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 Administrative Trustees pursuant to Section 10.08 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. Any and all notice to which any Trust Preferred
Securityholder hereunder may be entitled and any and all communications shall be
deemed duly served or given if mailed, postage prepaid, addressed to any Trust
Preferred Securityholders of record at his last known address as recorded on the
Security Register.
Section 6.03 Meetings of Trust Preferred Securityholders. No annual
meeting of Securityholders is required to be held. The Administrative Trustees,
however, shall call a meeting of Securityholders to vote on any matter upon the
written request of the Trust Preferred Securityholders of record of 25% of the
Trust Preferred Securities (based upon their Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time
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in their discretion, call a meeting of Trust Preferred Securityholders to vote
on any matters as to which Trust Preferred Securityholders are entitled to vote.
Trust Preferred Securityholders of record of 50% of the 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 more
than 66-2/3% 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 the action of the
Securityholders, unless this Trust Agreement requires a greater proportion of
affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be entitled to one
vote for each $25 of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote may vote by proxy, provided that no proxy shall
be voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. 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 Securities are held jointly by several Persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent. Any action which
may be taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding at least 66-2/3% of all outstanding Trust Securities
entitled to vote in respect of such action (or such other proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing (based upon their Liquidation Amount).
Section 6.07 Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action,
the Administrative Trustees may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
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Section 6.08 Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent appointed
in writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered to the
Administrative Trustees. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Securityholders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustees deem sufficient.
The ownership of Trust Preferred Securities shall be proved by the
Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Holders of Trust Securities and
the Administrative Trustees or among such Securityholders or Trustees with
respect to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.09 Inspection of Records. Upon reasonable notice to the
Trustees, 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.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
Section 7.01 Representations and Warranties of the Property Trustee and
Delaware Trustee. The Bank in its separate corporate capacity and as the
Property Trustee and Bank One Delaware, Inc. in its separate corporate
capacity and as the Delaware Trustee, each on behalf of and as to itself, hereby
represents and warrants for the benefit of the Depositor and the Securityholders
that:
(a) the Bank is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws of the State of
Michigan, and Bank One Delaware, Inc. is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) each of the Bank in its separate corporate capacity and in its
capacity as the Property Trustee and Bank One Delaware, Inc. in its separate
corporate capacity and in its capacity as the Delaware Trustee has full
corporate power, authority and legal right to execute, deliver this Trust
Agreement and to perform their obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by each of 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 it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance of this Trust Agreement
and the consummation of the transactions contemplated thereby by each of the
Bank in its capacity as the Property Trustee and by Bank One Delaware, Inc. in
its capacity as Delaware Trustee of this Trust Agreement have been duly
authorized by all necessary corporate action on the part of the Bank in its
separate corporate capacity and as Property Trustee, and by Bank One Delaware,
Inc. in its separate corporate capacity and as the Delaware Trustee and do not
require any approval of stockholders of the Bank or of Bank One Delaware, Inc.
and such execution, delivery and performance will not (i) violate the Bank's or
Bank One Delaware, Inc.'s charter or by-laws, or (ii) violate any law,
governmental rule or regulation of the United States or the States of Michigan
or Delaware, as the case may be, governing the banking, trust, or corporate
powers (as appropriate in context) of the Bank in its separate corporate
capacity and in its capacity as the Property Trustee or of Bank One Delaware,
Inc. in its capacity as the Delaware Trustee or in its separate corporate
capacity, (as appropriate in context) or any indenture, mortgage, bank credit
agreement, note or bond purchase agreement, long-term lease, license or other
agreement or any order, judgment or decree applicable to the Bank, the Property
Trustee, Bank One Delaware, Inc. or the Delaware Trustee; and
(e) neither the authorization, execution, delivery or performance
by the Bank, the Delaware Corporation, the Property Trustee, or the Delaware
Trustee of this Trust Agreement, nor the consummation of any of the transactions
by the Bank, the Delaware Corporation, the Property
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Trustee or the Delaware Trustee (as appropriate in context) contemplated herein
or therein, nor the issuance of the Trust Securities Certificates pursuant to
this Trust Agreement require the consent or approval of, the withholding of
objection on the part of, the giving of notice to, the filing, the registration,
or the qualification with or the taking of any other action with respect to any
governmental authority or agency under any existing federal, Michigan, or
Delaware law governing the banking, trust, or corporate powers of the Property
Trustee or the Delaware Trustee (as appropriate in context).
(f) There are no proceedings pending or threatened against the Bank,
the Delaware Corporation, 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 have a material adverse
effect on the right, power and authority of the Bank, the Delaware Corporation,
the Property Trustee or the Delaware Trustee to enter into or perform its
obligations under this Trust Agreement.
Section 7.02 Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at the 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 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 VIII
THE TRUSTEES
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and the Delaware Business Trust Act and, in
the case of the Property Trustee, 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 reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to them. Whether or not therein expressly so provided,
every provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section.
(b) All payments made by the Property Trustee in respect of the Trust
Securities shall be made only from the income and proceeds from the Trust
Property and only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee to make payments
in accordance with the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income and proceeds from
the Trust Property to the extent available for distribution to it as herein
provided and that the Trustees are not personally liable to such Holder for any
amount distributable in respect of any Trust Security or for any other liability
in respect of any Trust Security. This Section
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8.01(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
Section 8.02 Notice of Defaults. Within 90 days after the occurrence of
any default known to the Property Trustee, the Property Trustee shall transmit,
in the manner and to the extent provided in Section 10.08, notice of any such
default to the Securityholders, the Administrative Trustees and the Depositor,
unless such default shall have been cured or waived. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
Section 8.03 Certain Rights of Property Trustee. Subject to the
provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) if (A) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action, or
(B) in construing any of the provisions in this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein, or (C) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Trust Preferred Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken. The Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith negligence or willful misconduct;
(iii) the Property Trustee may consult with counsel of its selection
and the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(iv) 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;
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(v) 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 or other document, unless requested in writing to do so by one or
more Securityholders; and
(vi) 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.
Section 8.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Depositor, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities in
accordance with Sections 2.04 and 2.05.
The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless an officer of the Property Trustee
assigned to its Corporate Trustee administrative department shall have received
written notice from the Corporation, any Holder or any other Trustee that such
funds are not legally available.
Section 8.05 Trustee May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of the Trustees or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.06 Compensation; Fees; Indemnity.
The Depositor agrees:
(1) to pay to the Trustees from time to time reasonable compensation
for all services rendered by the Trustees hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
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 their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their negligence, willful
misconduct or bad faith; and
(3) to indemnify the Trustees for, and to hold the Trustees harmless
against, any and all loss, damage, claims, liability or expense incurred without
negligence, willful misconduct or bad faith on their part, arising out of or in
connection with the acceptance or administration of this Trust Agreement,
including the costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
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The provisions of this Section 8.06 shall survive the termination of
this Trust Agreement or the resignation or removal of any Trustee.
Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that has
a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age and
a resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware that shall act through one or more
persons authorized to bind such entity.
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. To the extent permitted by the Trust Indenture Act, the Property
Trustee shall not be deemed to have a conflicting interest by virtue of being
trustee under the Trust Guarantee. Subject to the foregoing, 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 Securityholders 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, (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 8.09 Co-Property Trustees and Separate Trustee.
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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 Holder of the Trust Common Securities
and the Property Trustee shall have power to appoint, and upon the written
request of the Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-property trustee, jointly
with the Property Trustee, of all or any part of such Trust Property, or to act
as separate trustee of any such Trust 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 Agreement. If
the Depositor does not join in such appointment within 15 days after the receipt
by it of a request so to do, or in case an Debenture Indenture Event of Default
has occurred and is continuing, the Property Trustee alone shall have power to
make such appointment. Any co-property trustee or separate trustee appointed
pursuant to this Section shall satisfy the requirements of Section 8.07.
Should any written instrument from the Depositor be required by any
co-property trustee or separate trustee so appointed for more fully confirming
to such co-property 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-property trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(i) The Trust Securities shall be executed, authenticated and
delivered and all rights, powers, duties, and obligations hereunder in respect
of the custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees hereunder, shall be
exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-property trustee or
separate trustee jointly, as shall be provided in the instrument appointing such
co-property 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-property trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-property trustee or separate trustee appointed
under this Section, and, in case an Debenture Indenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-property 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
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successor to any co-property trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section.
(iv) No co-property trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee, or
any other such trustee hereunder.
(v) The Trustees shall not be liable by reason of any act of a
co-property trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-property 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 Holders. 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 resigning Relevant Trustee may petition, at
the expense of the Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless an Debenture Indenture Event of Default shall have occurred and
be continuing, any Trustee may be removed at any time by Act of the Holder of
the Trust Common Securities. If a Debenture Indenture 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 Liquidation Amount of the Trust Preferred Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Holder of the Trust Common
Securities at any time. In no event will the Holders of the Trust Preferred
Securities have a right to vote to appoint, remove or replace the Administrative
Trustees.
If any Trustee shall resign, be removed or become incapable of
continuing to act as Trustee, or if a vacancy shall occur in the office of any
Trustee for any reason, at a time when no Debenture Indenture Event of Default
shall have occurred and be continuing, the Holder of the Trust Common
Securities, by its Act of the Holders of the Trust Common Securities, shall
promptly appoint a successor Trustee or successor Trustees, and each 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, or a vacancy shall occur in the office of any such Trustee
for any reason, at a time when an Debenture Indenture Event of Default shall
have occurred and be continuing, the Holders of Trust Preferred Securities, by
Act of the Holders of a majority in Liquidation Amount of the Trust Preferred
Securities then Outstanding, shall promptly appoint a successor Relevant Trustee
or Relevant Trustees and
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such successor Relevant Trustee or Relevant Trustees shall comply with the
applicable requirements of Section 8.11. If an Administrative Trustee shall
resign, be removed or become incapable of acting as Administrative Trustee, or a
vacancy shall occur in the office of any such Trustee for any reason, at a time
when a Debenture Indenture Event of Default shall have occurred and be
continuing, the Holder of the Trust Common Securities, by Act of the Holder of
the Trust Common Securities, shall promptly appoint a successor Administrative
Trustee or Administrative Trustees and such successor Administrative Trustee or
Administrative Trustees shall comply with the applicable requirements of Section
8.11. If no successor Relevant Trustee shall have been so appointed in
accordance with this Section 8.10 and accepted appointment in the manner
required by Section 8.11, any Holder who has been a Holder of Trust Securities
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all Holders
in the manner provided in Section 10.08 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 Administrative Trustee or a 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 (i) the act of the remaining Administrative Trustee or (ii)
otherwise by the Depositor (with the successor in each case being a Person who
satisfies the eligibility requirements for an Administrative Trustee or a
Delaware Trustee, as the case may be, set forth in Section 8.07).
Section 8.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, every such successor
Relevant Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee; but, on the request
of the Depositor or the successor Relevant Trustee, such retiring Relevant
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Relevant Trustee all the rights, powers and
trusts of the retiring Relevant Trustee and shall duly assign, transfer and
deliver to such successor Relevant Trustee all property and money held by such
retiring Relevant Trustee hereunder.
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 preceding paragraph.
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.
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Section 8.12 Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against Depositor or
Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Subordinated Debentures or
the Trust Securities), the Property Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims against the
Depositor or Trust (or any such other obligor). For purposes of Section
311(b)(4) and (6) of the Trust Indenture Act:
(a) "cash transaction" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Depositor or the Trust (or any such obligor) for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Property
Trustee simultaneously with the creation of the creditor relationship with the
Depositor or the Trust (or any such obligor) arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
Section 8.14 Reports by Property Trustee.
(a) Within 60 days after May 15th of each year commencing with May
15, 2000, if required by Section 313(a) of the Trust Indenture Act, the Property
Trustee shall transmit a brief report dated as of such May 15 with respect to
any of the events specified in such Section 313(a) that may have occurred since
the later of the date of this Trust Agreement or the preceding May 15.
(b) The Property Trustee shall transmit to Securityholders the
reports required by Section 313(b) of the Trust Indenture Act at the times
specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and (d) of the Trust
Indenture Act.
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Section 8.15 Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and, within 120 days after the end of each
fiscal year of the Depositor, the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act in the form and in the manner required by
Section 314 of the Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions Precedent. Each of
the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement 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 pursuant to Section 314(c)(1) of the
Trust Indenture Act shall comply with Section 314(e) of the Trust Indenture Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be four, provided that the
Depositor by written instrument may increase the number of Administrative
Trustees or decrease the number to one but not to zero.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all powers granted to the
Administrative Trustees and shall discharge the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee, may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.07(A), including any registration statement or amendment thereto filed with
the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number the doing of such things and the execution
of such instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
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Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders.
If a Debenture Indenture Event of Default occurs and is continuing,
then (i) the Holders of Trust Preferred Securities will rely on the enforcement
by the Property Trustee of its rights against the Corporation as the holder of
the Subordinated Debentures and (ii) the Holders of a majority in aggregate
Liquidation Amount of the Trust Preferred Securities will have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Property Trustee or to direct the exercise of any trust or
power conferred upon the Property Trustee under this Trust Agreement, including
the right to direct the Property Trustee to exercise the remedies available to
it as a holder of the Subordinated Debentures, provided that such direction
shall not be in conflict with any rule of law or with this Trust Agreement, and
could not involve the Property Trustee in personal liability in circumstances
where reasonable indemnity would not be adequate. If the Property Trustee fails
to enforce its rights under the Subordinated Debentures, a Holder of Trust
Preferred Securities may, to the extent permitted by applicable law, institute a
legal proceeding against the Corporation to enforce its rights under this Trust
Agreement without first instituting any legal proceeding against the Property
Trustee or any other Person, including the Trust; it being understood and
intended that no one or more of such Holders shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this Trust
Agreement to affect, disturb or prejudice the rights of any other of such
Holders or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Trust Agreement, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders. Notwithstanding the foregoing, a Holder of Trust Preferred Securities
may institute a legal proceeding directly against the Corporation without first
instituting a legal proceeding against or requesting or directing that action be
taken by the Property Trustee or any other Person, for enforcement of payment to
such Holder of principal of or interest on the Subordinated Debentures having a
principal amount equal to the aggregate stated Liquidation Amount of the Trust
Preferred Securities of such Holder on or after the due dates therefor specified
or provided for in the Subordinated Debentures. The Corporation shall be
subrogated to all rights of the Holders of Trust Preferred Securities in respect
of any amounts paid to such Holders by the Corporation pursuant to this Section.
ARTICLE IX
TERMINATION AND LIQUIDATION
Section 9.01 Termination Upon Expiration Date. The Trust shall
automatically terminate on ________________ (the "Expiration Date") or earlier
pursuant to Section 9.02 or 9.03.
Section 9.02 Early Termination. Upon the first to occur of any of the
following events (such first occurrence, an "Early Termination Event"), the
Trust shall be dissolved and terminated in accordance with the terms hereof:
(i) the occurrence of a Bankruptcy Event in respect of the Depositor,
dissolution or liquidation of the Depositor, or the dissolution of the Trust
pursuant to judicial decree;
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(ii) the delivery of written direction to the Property Trustee by the
Depositor at any time (which direction is optional and wholly within the
discretion of the Depositor) to terminate the Trust and distribute the
Subordinated Debentures to Securityholders as provided in Section 9.04; and
(iii) the payment at maturity or redemption of all of the Subordinated
Debentures, and the consequent payment of the Trust Securities.
Section 9.03 Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the latest to occur of the following: (a) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02, of all amounts or instruments required to be distributed hereunder upon
the final payment of the Trust Securities; (b) the payment of any expenses owed
by the Trust; or (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii) of
Section 9.02 occurs, the Trust shall be liquidated and the Property Trustee
shall distribute the Subordinated Debentures to the Securityholders as provided
in this Section 9.04.
(b) In connection with a distribution of the Subordinated Debentures,
each Holder of Trust Securities shall be entitled to receive after the
satisfaction of liabilities to creditors of the Trust (as evidenced by a
certificate of the Administrative Trustees), a Like Amount of Subordinated
Debentures. Notice of liquidation shall be given by the Trustees by first-class
mail, postage prepaid, mailed not later than 30 nor more than 60 days prior to
the Liquidation Date to each Holder of Trust Securities at such Holder's address
appearing in the Security Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust Securities
Certificates not surrendered for exchange will be deemed to represent a Like
Amount of Subordinated Debentures; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Subordinated Debentures
as the Administrative Trustees or the Property Trustee shall deem appropriate.
(c) In order to effect the liquidation of the Trust and distribution
of the Subordinated Debentures to Securityholders, the Property Trustee shall
establish a record date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of
Subordinated Debentures in exchange for the Outstanding Trust Securities
Certificates.
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(d) After the Liquidation Date, (i) the Trust Securities will no
longer be deemed to be Outstanding, (ii) certificates representing a Like Amount
of Subordinated Debentures will be issued to Holders of Trust Securities
Certificates, upon surrender of such certificates to the Administrative Trustees
or their agent for exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of
Subordinated Debentures, accruing interest at the rate provided for in the
Subordinated Debentures from the last Distribution Date on which a Distribution
was made on such Trust Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of interest or
principal will be made to Holders of Trust Securities Certificates with respect
to such Subordinated Debentures) and (iv) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Subordinated Debentures upon surrender of Trust Securities Certificates.
(e) The Depositor will use its best efforts to have the Subordinated
Debentures that are distributed in exchange for the Trust Preferred Securities
listed on such securities exchange as the Trust Preferred Securities are then
listed. The Depositor may elect to have the Subordinated Debentures issued in
book-entry form to the Clearing Agency or its nominee.
Section 9.05 Bankruptcy. If an Early Termination Event specified in
clause (i) of Section 9.02 has occurred, the Trust shall be liquidated. The
Property Trustee shall distribute the Subordinated Debentures to the
Securityholders as provided in Section 9.04, unless such distribution is
determined by the Administrative Trustees not to be practical, in which event
the Holders will be entitled to receive out of the assets of the Trust available
for distribution to Securityholders, after satisfaction of liabilities to
creditors, an amount equal to the Liquidation Amount per Trust Security plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If such Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder
of the Trust Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, winding-up or termination pro rata
(determined as aforesaid) with Holders of Trust Preferred Securities, except
that, if an Debenture Indenture Event of Default has occurred and is continuing,
the Trust Preferred Securities shall have a priority over the Trust Common
Securities pursuant to Section 4.03.
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ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor irrevocably and unconditionally guarantees to
each person or entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to Holders of any Trust Securities or
other similar interests in the Trust the amounts due such Holders pursuant to
the terms of the Trust Preferred Securities or such other similar interests, as
the case may be. Such guarantee is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
Section 10.02 Limitation of Rights of Securityholders. The bankruptcy,
death or dissolution or incapacity of any Person having an interest, beneficial
or otherwise, in a Trust Security shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in and for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 10.03 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Administrative Trustees and the Depositor, without the consent of any
Securityholders and, except as provided in subsection (e) below, without the
consent of the Property Trustee or the Delaware Trustee, (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, provided,
however, that any such amendment shall not adversely affect in any material
respect the interests of any Securityholder, (ii) to modify, eliminate or add to
any provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will not be classified as other than a grantor trust for
United States federal income tax purposes at any time that any Trust Securities
are outstanding; provided, however, that, in the case of clause (i), any
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders or (iii) to provide the Property Trustee with the
authority to execute on behalf of the Administrative Trustees Definitive Trust
Preferred Securities Certificates.
(b) Except as provided in Section 10.03(c) hereof, any provision in
this Trust Agreement may be amended by the Trust or the Trustees with (i) the
consent of Securityholders representing not less than 66-2/3% (based upon
Liquidation Amounts) of the Trust Securities then Outstanding and (ii) receipt
by the Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States federal income
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tax purposes or the Trust's exemption from status of an "investment company"
under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution (or payment upon redemption) on the Trust Securities or otherwise
adversely affect the amount of any Distribution (or payment upon redemption)
required to be made in respect of the Trust Securities as of a specified date,
(ii) restrict the right of a Securityholder to institute suit for the
enforcement of any such payment on or after such date, (iii) change the purpose
of the Trust, (iv) authorize the issuance of any additional beneficial interests
in the Trust, or (v) change the consent required pursuant to this Section 10.03.
(d) Notwithstanding any other provisions of this Trust Agreement, the
Trustees shall not enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to be treated other than as a grantor
trust for United States federal income tax purposes or to fail or cease to
qualify for the exemption from status of an "investment company" under the
Investment Company Act of 1940, as amended, afforded by Rule 3a-5 thereunder.
(e) Without the consent of the Depositor, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor. Without the consent of the Property Trustee or the Delaware Trustee,
as the case may be, this Trust Agreement may not be amended in a manner which
affects the powers, duties or rights of the Property Trustee or the Delaware
Trustee, respectively. In executing any amendment permitted by this Trust
Agreement, the Trustees shall be entitled to receive, and (subject to Section
8.01) shall be fully protected in relying upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this Trust
Agreement. Any Trustee may, but shall not be obligated to, enter into any such
amendment which affects such Trustee's own rights, duties, immunities or
liabilities under this Trust Agreement or otherwise.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
Section 10.04 Separability. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.05 Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE.
Section 10.06 Notice of Deferral of Distribution. In the event that the
Depositor exercises its right to extend an interest payment period in respect of
the Subordinated Debentures pursuant to Section 104 of the Supplemental
Indenture and notice of such extension
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has been provided by the Depositor to the Property Trustee, the Property Trustee
shall give written notice of such extension and of the deferral of the related
Distribution on the Trust Securities, by first-class mail, postage prepaid,
mailed not later than ten days prior to the Distribution Date upon which such
Distribution would otherwise be payable, to each Holder of Trust Preferred
Securities at such Holder's address appearing in the Security Register.
Section 10.07 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.08 Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, first class postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (i) in the case of a Trust Preferred Securityholder, to
such Trust Preferred Securityholder as such Securityholder's name and address
appear on the Security Register and (ii) in the case of the Trust Common
Securityholder or the Depositor, to SEMCO Energy, Inc., 405 Water Street, P.O.
Box 5026, Port Huron, Michigan 48061-5026, Attention: Edric R. Mason, Jr.,
Facsimile No. (810) 989-4098. 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 or the Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the Property
Trustee, Bank One Trust Company, NA, Corporate Trust Administration, 11th Floor,
Suite 8110, 611 Woodward Avenue, Detroit, Michigan 48226; with respect to the
Delaware Trustee, Bank One Delaware, Inc., 3 Christina Centre, 201 N. Walnut
St., Wilmington, Delaware 19801, Attention: Corporate Trust Services Division,
with a copy to Bank One Trust Company, NA, Corporate Trust Administration, 11th
Floor, Suite 8110, 611 Woodward Avenue, Detroit, Michigan 48226, as the case may
be; and (ii) with respect to the Administrative Trustees, to them at the address
above for notices to the Depositor, marked Attention: Administrative Trustees of
SEMCO Capital Trust I, c/o SEMCO Energy, Inc., 405 Water Street, P.O. Box 5026,
Port Huron, Michigan 48061-5026, Attn: Edric R. Mason, Jr. Such notice, demand
or other communication to or upon the Trust or the Trustees shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the applicable Trustee.
Section 10.09 Agreement Not to Petition. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, reorganization, arrangement, insolvency, liquidation or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer with
the bankruptcy court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take such action and
should be stopped and precluded therefrom and such other defenses, if any, as
counsel for
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the Trustees or the Trust may assert. The provisions of this Section 10.09 shall
survive the termination of this Trust Agreement.
Section 10.10 Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE TRUST GUARANTEE AND THE
SUBORDINATED DEBENTURE INDENTURE AND THIS TRUST AGREEMENT, AND PROVIDE NOTICE TO
SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER
AND SUCH OTHERS.
Section 10.11 Successors. This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to both the Trust and the
Trustees, including any successor by operation of law.
IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement or have caused this Trust Agreement to be executed on their behalf,
all as of the day and year first above written.
SEMCO ENERGY, INC.
By:
-------------------------------------------
--------------------------------------
Its
-----------------------------------
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BANK ONE TRUST COMPANY, NA,
as Property Trustee
By:
-------------------------------------------
----------------------------,
Title:
--------------------------------
BANK ONE DELAWARE, INC.,
as Delaware Trustee
By:
-------------------------------------------
J. Michael Banas
Title: Vice President
----------------------------------------------
Sebastian Coppola, as Administrative Trustee
----------------------------------------------
Edric R. Mason, Jr., as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST
OF
SEMCO CAPITAL TRUST I
THIS CERTIFICATE OF TRUST OF SEMCO CAPITAL TRUST I (the "Trust"), is
being duly executed and filed by the undersigned as trustee, to form a business
trust under the Delaware Business Trust Act (12 Del., C. ss. 3801 et seq.) (the
"Act").
1. Name. The name of the business trust to be formed by this
Certificate of Trust is SEMCO Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware are Bank One Delaware,
Inc., 3 Christina Centre, 201 N. Walnut St., Wilmington,
Delaware 19801
3. Effective Date. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned, has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
BANK ONE DELAWARE, INC., not in its individual
capacity but solely as Trustee of the Trust
By:
-------------------------------------------
Name: J. Michael Banas
Title: Vice President
----------------------------------------------
Sebastian Coppola, as
Administrative Trustee
----------------------------------------------
Edric R. Mason, Jr., as
Administrative Trustee
Exhibit A- Page 1
<PAGE> 55
EXHIBIT B
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is
made as of ___________, between SEMCO Energy, Inc., a Michigan corporation (the
"Corporation"), and SEMCO Capital Trust I, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue its Trust Common Securities (the
"Trust Common Securities") to the Corporation and to issue and sell SEMCO
Capital Trust I ____ % Trust Preferred Securities (the "Trust Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Trust dated
as of _______, 1999 as the same may be amended from time to time (the "Trust
Agreement") and acquire Series ____% Subordinated Debentures due _________ (the
"Subordinated Debentures") from the Corporation; and
WHEREAS, the Corporation is the issuer of the Subordinated Debentures.
NOW, THEREFORE, in consideration of the purchase by each holder of the
Trust Securities, which purchase the Corporation hereby agrees shall benefit the
Corporation and which purchase the Corporation acknowledges will be made in
reliance upon the execution and delivery of this Agreement, the Corporation and
the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Corporation. Subject to the terms and
conditions hereof, the Corporation hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to holders of any Trust
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Trust Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be effective
or shall be reinstated, as the case may be, if at any time any holder of Trust
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Trust Preferred Securities, under any Obligation, under the Trust
Guarantee Agreement dated the date hereof by the Corporation and Bank One Trust
Company, NA, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Exhibit B- Page 1
<PAGE> 56
Section 1.03. Waiver of Notice. The Corporation hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Corporation hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 1.04. No Impairment. The obligations, covenants, agreements and
duties of the Corporation under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of the assets of
the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, the Corporation with respect to the happening of any of
the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
directly against the Corporation and the Corporation waives any right or remedy
to require that any action be brought against the Trust or any other person or
entity before proceeding against the Corporation.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements contained
in this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there remains any Beneficiary or
any Trust Preferred Securities are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Trust Preferred Securities.
Section 2.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), or by registered or certified mail, addressed as follows
(and if so given, shall be deemed given when mailed), to-wit:
Exhibit B- Page 2
<PAGE> 57
SEMCO Capital Trust I
c/o SEMCO Energy, Inc.
405 Water Street
Port Huron, Michigan 48061-5026
Facsimile No.: (810) 989-4098
Attention: Edric R. Mason, Jr.
SEMCO Energy, Inc.
405 Water Street
Port Huron, Michigan 48061-5026
Facsimile No.: (810) 989-4098
Attention: Sherry L. Abbott
Section 2.04. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN.
THIS AGREEMENT is executed as of the date and year first above written.
SEMCO ENERGY, INC.
By:
----------------------------------------------
Name:
Title:
-----------------------------------------
SEMCO CAPITAL TRUST I
By:
----------------------------------------------
Sebastian Coppola, as Administrative Trustee
By:
----------------------------------------------
Edric R. Mason, Jr., as Administrative Trustee
Exhibit B- Page 3
<PAGE> 58
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS PROVIDED IN THE TRUST
AGREEMENT REFERRED TO HEREIN
Certificate Number Number of Trust Common Securities
C-1 --------------------
Certificate Evidencing Trust Common Securities
of
SEMCO Capital Trust I
Trust Common Securities
(Liquidation Amount $25 per Trust Common Security)
SEMCO Capital Trust I, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that SEMCO Energy,
Inc., (the "Holder") is the registered owner of ______ Trust Common Securities
of the Trust representing undivided beneficial interests in the assets of the
Trust and designated the Trust Common Securities (Liquidation Amount $25 per
Trust Common Security) (the "Trust Common Securities"). In accordance with
Section 5.10 of the Trust Agreement (as defined below) the Trust Common
Securities are not transferable, except by operation of law or to an Affiliate
of the Holder or a permitted successor under Section 801 of the Subordinated
Debenture Indenture, dated as of ____________, 1999, between the Holder and
_________________, as trustee, and any attempted transfer hereof shall be void.
The designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Trust Common Securities are set forth in, and this
certificate and the Trust Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of _________, as the same may be
amended from time to time (the "Trust Agreement"), including the designation of
the terms of the Trust Common Securities as set forth therein. The Trust will
furnish a copy of the Trust Agreement to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Exhibit C- Page 1
<PAGE> 59
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this _____day of _______, ____.
SEMCO Capital Trust I
By:
---------------------------------------------
Sebastian Coppola
as Administrative Trustee
By:
---------------------------------------------
Edric R. Mason, Jr.,
as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Trust Common Securities referred to in the within
mentioned Trust Agreement.
------------------------------------------------
Sebastian Coppola, as Administrative Trustee
Exhibit C- Page 2
<PAGE> 60
EXHIBIT D
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to SEMCO Capital
Trust I 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 made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), any transfer, pledge, or other use hereof for value or
otherwise by or to any person is wrongful inasmuch as the registered owner
thereof, Cede & Co., has an interest herein.
Certificate Number Number of Trust Preferred Securities
P- CUSIP NO.
Certificate Evidencing Trust Preferred Securities
of
SEMCO Capital Trust I
_____ % Trust Preferred Securities
(Liquidation Amount $25 per Trust Preferred Security)
SEMCO Capital Trust I, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that ______________
(the "Holder") is the registered owner of ______ Trust Preferred Securities of
the Trust representing undivided beneficial interests in the assets of the Trust
and designated the SEMCO Capital Trust I ____ % Trust Preferred Securities
(Liquidation Amount $25 per Trust Preferred Security) (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 5.04 of the Trust 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 _________, 1999, 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 holder of this
certificate is entitled to the benefits of a guarantee by SEMCO Energy, Inc., a
Michigan corporation (the "Corporation"), pursuant to a Trust Guarantee
Agreement between the Corporation and Bank One Trust Company, NA, as guarantee
trustee, dated as of _________, 1999, as the same may be amended from time to
time (the "Trust Guarantee"), to the extent provided therein. The Trust will
furnish a copy of the Trust Agreement and the Trust Guarantee to the holder of
this certificate without charge upon written request to the Trust at its
principal place of business or registered office.
Exhibit D- Page 1
<PAGE> 61
Upon receipt of this certificate, the holder of this certificate is
bound by the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this _____ day of _________, ____.
SEMCO CAPITAL TRUST I
By:
----------------------------------------------
Sebastian Coppola, as Administrative Trustee
By:
----------------------------------------------
Edric R. Mason, Jr., as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to in the within
mentioned Trust Agreement.
-------------------------------------------------
Sebastian Coppola, as Administrative Trustee
Exhibit D- Page 2
<PAGE> 62
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 Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
------------------------------
Signature:
-------------------------
(Sign exactly as your name appears on the other side of this Trust Preferred
Security Certificate)
Exhibit D- Page 3
<PAGE> 1
EXHIBIT 4.12
FORM OF AMENDED & RESTATED TRUST AGREEMENT
SEMCO CAPITAL TRUST II
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
SEMCO ENERGY, INC., AS DEPOSITOR,
BANK ONE TRUST COMPANY, NA, AS PROPERTY TRUSTEE
BANK ONE DELAWARE, INC., AS DELAWARE TRUSTEE
AND
SEBASTIAN COPPOLA AND EDRIC R. MASON, JR.,
AS ADMINISTRATIVE TRUSTEES
DATED AS OF
----------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I Defined Terms........................................................................
Section 1.01 Definitions....................................................................
ARTICLE II Establishment of the Trust...........................................................
Section 2.01 Name...........................................................................
Section 2.02 Offices of the Trustees; Principal Place of Business...........................
Section 2.03 Initial Contribution of Trust Property; Organizational
Expenses.......................................................................
Section 2.04 Issuance of the Trust Preferred Securities.....................................
Section 2.05 Subscription and Purchase of Subordinated Debentures;
Issuance of the Trust Common Securities........................................
Section 2.06 Declaration of Trust...........................................................
Section 2.07 Authorization to Enter into Certain Transactions...............................
Section 2.08 Assets of Trust................................................................
Section 2.09 Title to Trust Property........................................................
Section 2.10 Mergers and Consolidations of the Trust........................................
ARTICLE III Payment Account......................................................................
Section 3.01 Payment Account................................................................
ARTICLE IV Distributions; Redemption............................................................
Section 4.01 Distributions .................................................................
Section 4.02 Redemption.....................................................................
Section 4.03 Subordination of Trust Common Securities.......................................
Section 4.04 Payment Procedures.............................................................
Section 4.05 Tax Returns and Reports........................................................
ARTICLE V Trust Securities Certificates .......................................................
Section 5.01 Initial Ownership..............................................................
Section 5.02 The Trust Securities Certificates..............................................
Section 5.03 Authentication of Trust Securities Certificates................................
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates........................................................
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates...................................................................
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
Section 5.06 Persons Deemed Securityholders.................................................
Section 5.07 Access to List of Securityholders' Names and Addresses.........................
Section 5.08 Maintenance of Office or Agency................................................
Section 5.09 Appointment of Paying Agent....................................................
Section 5.10 Ownership of Trust Common Securities by Depositor..............................
Section 5.11 Book-Entry Trust Preferred Securities Certificates; Common
Securities Certificate.........................................................
Section 5.12 Notices to Clearing Agency.....................................................
Section 5.13 Definitive Trust Preferred Securities Certificates.............................
Section 5.14 Rights of Securityholders......................................................
ARTICLE VI Acts of Securityholders; Meetings; Voting............................................
Section 6.01 Limitations on Voting Rights...................................................
Section 6.02 Notice of Meetings.............................................................
Section 6.03 Meetings of Trust Preferred Securityholders....................................
Section 6.04 Voting Rights..................................................................
Section 6.05 Proxies, etc...................................................................
Section 6.06 Securityholder Action by Written Consent.......................................
Section 6.07 Record Date for Voting and Other Purposes......................................
Section 6.08 Acts of Securityholders........................................................
Section 6.09 Inspection of Records..........................................................
ARTICLE VII Representations and Warranties of the Property Trustee
and Delaware Trustee...........................................................
Section 7.01 Representations and Warranties of the Property Trustee
and Delaware Trustee...........................................................
Section 7.02 Representations and Warranties of Depositor ...................................
ARTICLE VIII The Trustees.........................................................................
Section 8.01 Certain Duties and Responsibilities............................................
Section 8.02 Notice of Defaults.............................................................
Section 8.03 Certain Rights of Property Trustee.............................................
Section 8.04 Not Responsible for Recitals or Issuance of Securities.........................
Section 8.05 Trustee May Hold Securities....................................................
Section 8.06 Compensation; Fees; Indemnity..................................................
Section 8.07 Trustees Required; Eligibility.................................................
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
Section 8.08 Conflicting Interests..........................................................
Section 8.09 Co-Property Trustees and Separate Trustee......................................
Section 8.10 Resignation and Removal; Appointment of Successor..............................
Section 8.11 Acceptance of Appointment by Successor.........................................
Section 8.12 Merger, Conversion, Consolidation or Succession
to Business....................................................................
Section 8.13 Preferential Collection of Claims Against Depositor
or Trust.......................................................................
Section 8.14 Reports by Property Trustee....................................................
Section 8.15 Reports to the Property Trustee................................................
Section 8.16 Evidence of Compliance with Conditions Precedent...............................
Section 8.17 Number of Trustees.............................................................
Section 8.18 Delegation of Power............................................................
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders................................................................
ARTICLE IX Termination and Liquidation..........................................................
Section 9.01 Termination Upon Expiration Date...............................................
Section 9.02 Early Termination..............................................................
Section 9.03 Termination....................................................................
Section 9.04 Liquidation....................................................................
Section 9.05 Bankruptcy.....................................................................
ARTICLE X Miscellaneous Provisions.............................................................
Section 10.01 Guarantee by the Depositor.....................................................
Section 10.02 Limitation of Rights of Securityholders........................................
Section 10.03 Amendment......................................................................
Section 10.04 Separability...................................................................
Section 10.05 Governing Law..................................................................
Section 10.06 Notice of Deferral of Distribution.............................................
Section 10.07 Headings.......................................................................
Section 10.08 Notice and Demand..............................................................
Section 10.09 Agreement Not to Petition......................................................
Section 10.10 Conflict with Trust Indenture Act..............................................
Section 10.11 Successors.....................................................................
</TABLE>
<PAGE> 5
EXHIBIT A - Certificate of Trust
EXHIBIT B - Form of Expense Agreement
EXHIBIT C - Form of Trust Common Securities Certificate
EXHIBIT D - Form of Trust Preferred Securities Certificate
<PAGE> 6
SEMCO CAPITAL TRUST II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Act Trust Agreement
Section Section
- ------- -------
<S> <C>
Section 310(a)(1).................................... 8.07
(a)(2).......................................... 8.07
(a)(3).......................................... 8.09
(a)(4).......................................... Not Applicable
(b)............................................. 8.08
Section 311(a)....................................... 8.13
(b)............................................. 8.13
Section 312(a)....................................... 5.07
(b)............................................. 5.07
(c)............................................. 5.07
Section 313(a)....................................... 8.14
(a)(4).......................................... 8.14(b)
(b)............................................. 8.14(b)
(c)............................................. 8.14(c)
(d)............................................. 8.14(b), 8.14(c)
Section 3.14(a)...................................... 8.15
(b)............................................. Not Applicable
(c)(1).......................................... 8.15, 8.16
(c)(2).......................................... 8.16
(c)(3).......................................... 8.16
(d)............................................. Not Applicable
(e)............................................. 8.16
Section 315(a)....................................... 8.01
(b)............................................. 8.02, 8.14(b)
(c)............................................. 8.01(a)
(d)............................................. 8.01, 8.03
(e)............................................. Not Applicable
Section 316(a)....................................... Not Applicable
(a)(1)(A)....................................... 8.19
(a)(1)(B)....................................... 8.19
(a)(2).......................................... Not Applicable
(b)............................................. Not Applicable
(c)............................................. Not Applicable
Section 317(a)(1).................................... Not Applicable
(a)(2).......................................... Not Applicable
(b)............................................. 5.09
Section 318(a)....................................... 10.10
</TABLE>
Note: This Cross-Reference Table does not constitute part of the Trust
Agreement and shall not affect the interpretation of any of its terms and
provisions.
<PAGE> 7
AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of ____________,
1999 by and among (i) SEMCO Energy, Inc., a Michigan corporation (the
"Depositor" or the "Corporation"), (ii) Bank One Trust Company, NA, a national
banking association, as trustee (the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) Bank One Delaware, Inc., a corporation duly organized under the laws of
the State of Delaware, as Delaware trustee (the "Delaware Trustee" and in its
separate corporate and not in its capacity as Delaware Trustee, the "Delaware
Corporation"), (iv) Sebastian Coppola, an individual, and Edric R. Mason, Jr.,
an individual, as administrative trustees (each an "Administrative Trustee" and
together the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH:
WHEREAS, the Depositor and certain of the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the execution and filing with the Secretary of State of the State
of Delaware of the Certificate of Trust, dated __________ ___, 1999 (the
"Certificate of Trust") and by the entering into that certain Trust Agreement,
dated as of _______ ___, 1999 (the "Original Trust Agreement"), and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the addition of the Bank, as trustee of the Trust, (ii) the
acquisition by the Trust from the Depositor of all of the right, title and
interest in certain subordinated debentures of the Depositor, (iii) the issuance
of the Trust Common Securities by the Trust to the Depositor, and (iv) the
issuance and sale of the Trust Preferred Securities by the Trust pursuant to the
Underwriting Agreement.
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:
1
<PAGE> 8
ARTICLE I
DEFINED TERMS
Section 1.01 Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, an amount equal to the Additional
Interest (as defined in clause (ii) of the definition of "Additional Interest"
in the Subordinated Debenture Indenture) paid by the Depositor on a Like Amount
of Subordinated Debentures for such period.
"Administrative Trustee" means each of the individuals identified as an
"Administrative Trustee" in the preamble to this Trust Agreement solely in their
capacities as Administrative Trustees of the Trust formed and continued
hereunder and except as specifically provided to the contrary herein and not in
their individual capacities, or such trustee's successor(s) in interest in such
capacity, or any successor "Administrative Trustee" appointed as herein
provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, control
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of such Person in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging such
Person a bankrupt or insolvent, or approving as properly filed a petition
2
<PAGE> 9
seeking reorganization, arrangement, adjustment or composition of or in respect
of such Person under any applicable federal or state law, or appointing a
custodian, 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 for relief or any such other decree or order unstayed
and in effect for a period of 90 consecutive days; or
(ii) the commencement by such Person of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of such Person in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Corporation 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, or the authorization of any such action by the
board of directors of such Person.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Beneficiaries" has the meaning specified in Section 10.01.
"Board Resolution" means a resolution or a copy thereof certified by
the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors or a duly authorized committee
thereof and to be in full force and effect on the date of such certification,
and delivered to the Trustees.
"Book-Entry Trust Preferred Securities Certificates" means certificates
representing Trust Preferred Securities issued in global, fully registered form
to the Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii)
a day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office or the Indenture Trustee's principal corporate trust office is closed for
business.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. 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 which from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency pursuant to the rules of such Clearing Agency or an agreement
between the Clearing Agency and such Person in the customary form.
3
<PAGE> 10
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act then the body
performing such duties at such time.
"Corporate Trust Office" means the office of the Property Trustee
located in Detroit, Michigan at which its corporate trust business shall be
principally administered.
"Corporation" means SEMCO Energy, Inc., its successors and assigns.
"Debenture Indenture Event of Default" means an "Event of Default" as
defined in the Subordinated Debenture Indenture with respect to the Subordinated
Debentures.
"Debenture Indenture Redemption Date" means "Redemption Date", as
defined in the Subordinated Debenture Indenture.
"Definitive Trust Preferred Securities Certificates" means either or
both (as the context requires) of (i) Trust Preferred Securities Certificates
issued in certificated, fully registered form as provided in Section 5.11(a) and
(ii) Trust Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time.
"Delaware Corporation" means Bank One Delaware, Inc. in its
separate corporate capacity.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" and has the meaning specified in the preamble to this Trust Agreement
solely in its capacity as Delaware Trustee of the Trust formed and continued
hereunder and except as specifically provided to the contrary herein, not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware Trustee appointed as herein provided.
"Depositor" means SEMCO Energy, Inc., in its capacity as "Depositor"
under this Trust Agreement, its successors and assigns.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section 9.02.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of
4
<PAGE> 11
law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(i) the occurrence of a Debenture Indenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of 30
days; or
(iii) default by the Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, of any covenant or
warranty of the Trustees in this Trust Agreement (other than a covenant or
warranty a default in whose performance or breach is dealt with in clause (ii)
or (iii) above) and continuation of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Trustees by the Holders of at least 25% in Liquidation Amount of the Outstanding
Trust Preferred Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect to the Trust.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Corporation and the Trust, substantially in the form attached as
Exhibit B, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation, with a similar purpose and
effect.
"Extension Period" has the meaning specified in Section 4.01(b).
"Indenture Trustee" means the trustee under the Subordinated Debenture
Indenture.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Issue Date" means the date of the original issuance and delivery of
the Trust Securities by the Administrative Trustees.
"Legal Action" has the meaning specified in Section 2.07(A)(iv).
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation Amount
equal to the principal amount of Subordinated Debentures to be contemporaneously
redeemed in
5
<PAGE> 12
accordance with the Subordinated Debenture Indenture and the proceeds of which
will be used to pay the Redemption Price of such Trust Securities and (ii)
Subordinated Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Subordinated
Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Subordinated Debentures are
to be distributed to Holders of Trust Securities in connection with a
liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in Section 9.05.
"Obligations" has the meaning specified in Section 10.01.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Depositor, and
delivered to the appropriate Trustee. One of the officers signing an Officers'
Certificate to be delivered by the Depositor pursuant to Section 8.16 shall be
the principal executive, financial or accounting officer of the Depositor. An
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 such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in the Officers'
Certificate are based;
(c) a statement that, in the opinion of each such officer, he has made
such examination or investigation as is necessary to enable him 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.
"OID" means "original issue discount" as that term or any substantially
similar subsequent term is defined in the Internal Revenue Code of 1986, as
amended.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Trustees or the Depositor, but not an employee of the
Trust or the Trustees, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel pertaining to federal income tax matters may
rely on published rulings of the Internal Revenue Service.
"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 authenticated and delivered under this Trust Agreement, except:
(i) Trust Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the Administrative Trustees for
cancellation;
(ii) 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 or provision
therefor satisfactory to the Property Trustee has been made; and
(iii) Trust Preferred Securities in exchange for or in lieu of which
other Trust Preferred Securities have been authenticated and delivered pursuant
to this Trust Agreement; 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, whether of record
or beneficially, by the Depositor, the Holder of the Trust Common Securities,
any Administrative Trustee or any Affiliate of the Depositor or any
Administrative 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 which such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at any time when
all of the outstanding Trust Preferred Securities are owned by the Depositor,
the Holder of the Trust Common Securities, one or more Administrative 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 Administrative Trustees 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 5.09 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account established pursuant to Section 3.01 and maintained by the
Property Trustee for the benefit of the Securityholders in which all amounts
paid in respect of the Subordinated Debentures will be held and from which the
Property Trustee shall make payments to the Securityholders in accordance with
Section 4.01.
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"Person" means an individual, corporation, partnership, joint venture,
trust, estate, 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 formed and continued
hereunder and except as specifically provided to the contrary herein not in its
individual capacity, or its successor in interest in such capacity, or any
successor "Property Trustee" as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Indenture Redemption Date shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for redemption
of any Trust Security, the Liquidation Amount of such Trust Security, plus
accrued and unpaid Distributions to such date.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation with a similar purpose and effect.
"Security Register" and "Security Registrar" are described in Section
5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security is or Securities are registered in the Security Register; any such
Person is a beneficial owner within the meaning of the Delaware Business Trust
Act.
"Subordinated Debentures" means the $_________ aggregate principal
amount of the Depositor's Series _____ % Subordinated Debentures due _____,
_____ issued pursuant to the Subordinated Debenture Indenture.
"Subordinated Debenture Indenture" means the Subordinated Debenture
Indenture, dated as of ______________, between the Depositor and the Indenture
Trustee, as supplemented by the Supplemental Indenture.
"Successor Securities" has the meaning specified in Section 2.10.
"Supplemental Indenture" means the Indenture, dated as of
_________________, by and between the Depositor and the Indenture Trustee for
the purpose of supplementing the Subordinated Debenture Indenture entered into
in connection with the Subordinated Debentures.
"Trust" means the Delaware business trust continued hereby and
identified on the cover page to this Trust Agreement.
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"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 an
purposes of this Amended and Restated Trust Agreement and any modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust Agreement and
any such modification, amendment or supplement, respectively.
"Trust Common Securities Certificate" means a certificate evidencing
ownership of a Trust Common Security or Securities, substantially in the form
attached as Exhibit C.
"Trust Common Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount of $25 and
having the rights provided therefor in this Trust Agreement, including the right
to receive Distributions and a Liquidation Distribution as provided herein.
"Trustees" means the Persons identified as "Trustees" in the preamble
to this Trust Agreement solely in their capacities as Trustees of the Trust
formed hereunder and except as specifically provided to the contrary herein not
in their individual capacities, or any successor in interest in such capacity,
or any successor trustee appointed as herein provided.
"Trust Guarantee" means the Trust Guarantee Agreement executed and
delivered by the Corporation and Bank One Trust Company, NA, as Guarantee
Trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Trust Preferred Securities, as
amended from time to time.
"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 a Trust Preferred Security or Securities, substantially in the form
attached as Exhibit D.
"Trust Preferred Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount of $25 and
having rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Trust Property" means (i) the Subordinated Debentures, (ii) any cash
on deposit in, or amounts owing to, the Payment Account, and (iii) all proceeds
and rights in respect of the foregoing and any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to this
Trust Agreement.
"Trust Securities Certificate" means any one of the Trust Common
Securities Certificates or the Trust Preferred Securities Certificates.
"Trust Security" means any one of the Trust Common Securities or the
Trust Preferred Securities.
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"Underwriting Agreement" means the Underwriting Agreement, dated as of
___________________ among the Trust, the Depositor and the underwriters named
therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.01 Name. The Trust continued hereby shall be known as "SEMCO
Capital Trust II" in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued. The Administrative Trustees may change the name of the
Trust from time to time following written notice to the Holders.
Section 2.02 Offices of the Trustees; Principal Place of Business. The
address of the Property Trustee is Bank One Trust Company, NA, Corporate Trust
Administration, 11th Floor - Suite 8110, 611 Woodward Avenue, Detroit, Michigan
48226, or at such other address as the Property Trustee may designate by written
notice to the Securityholders and the Depositor. The principal place of business
of the Delaware Trustee is Bank One Delaware, Inc., 3 Christina Centre, 201
N. Walnut St., Wilmington, Delaware 19801, or at such other address in Delaware
as the Delaware Trustee may designate by notice to the Depositor. The address of
the Administrative Trustees is c/o SEMCO Energy, Inc., 405 Water Street, P.O.
Box 5026, Port Huron, Michigan 48061-5026, Attention: Edric R. Mason, Jr. The
principal place of business of the Trust is c/o SEMCO Energy, Inc., 405 Water
Street, P.O. Box 5026, Port Huron, Michigan 48061-5026. The Depositor may change
the principal place of business of the Trust at any time by giving notice
thereof to the Trustees.
Section 2.03 Initial Contribution of Trust Property; Organizational
Expenses. The Trustees acknowledge 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 the Trustees,
promptly reimburse the Trustees for any such expenses paid by the Trustees. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.04 Issuance of the Trust Preferred Securities.
Contemporaneously with the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall execute 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, in an aggregate amount of Trust Preferred Securities having an aggregate
Liquidation Amount of $_________ (the "Trust Preferred Securities") against
receipt of the aggregate purchase price of such Trust Preferred Securities of
$__________, which amount the Administrative Trustees shall promptly deliver to
the Property Trustee.
Section 2.05 Subscription and Purchase of Subordinated Debentures;
Issuance of the Trust Common Securities. Contemporaneously with the execution
and delivery of this Trust Agreement, the Administrative Trustees, on behalf of
the Trust, shall execute and deliver to the Depositor Trust Common Securities
Certificates, registered in the name of the Depositor, in an
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aggregate amount of Trust Common Securities having an aggregate Liquidation
Amount of $__________ against payment by the Depositor of such amount.
Contemporaneously therewith, the Administrative Trustees, on behalf of the
Trust, shall subscribe to and purchase from the Depositor Subordinated
Debentures, registered in the name of the Property Trustee, on behalf of the
Trust and the Holders, and having an aggregate principal amount equal to
$___________ and, in satisfaction of the purchase price for such Subordinated
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $___________.
Section 2.06 Declaration of Trust. The exclusive purposes and functions
of the Trust are (i) to issue and sell the Trust Securities, (ii) to use the
proceeds from such sale to acquire the Subordinated Debentures, and (iii) to
engage in only those other activities necessary, appropriate, convenient or
incidental thereto. The Depositor hereby appoints each of the Bank, the Delaware
Trustee, Sebastian Coppola, and Edric R. Mason, Jr., as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth herein. The
Property Trustee hereby declares that it will hold the Trust Property upon and
subject to the conditions set forth herein subject to the conditions set forth
herein for the benefit of the Trust and the Securityholders. The Trustees shall
have all rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes of the Trust. Except
as may be required under the Delaware Business Trust Act, the Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of any other Trustee set forth
herein. The Delaware Trustee shall be one of the Trustees for the sole and
limited purpose of fulfilling the requirements of Section 3807(a) of the
Delaware Business Trust Act. The Delaware Trustee, as the trustee under the
Original Trust Agreement, has filed the Certificate of Trust of the Trust with
the office of the Secretary of State of the State of Delaware, a copy of which
is attached hereto as Exhibit A, and such filing is hereby confirmed and
ratified.
Section 2.07 Authorization to Enter into Certain Transactions. The
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Trust Agreement. Subject to the limitations set forth in paragraph (C) of
this Section, and in accordance with the following paragraphs (A) and (B), the
Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express (in the case of the Property Trustee) or implied, otherwise granted to
the Trustees under this Trust Agreement, and to perform all acts in furtherance
thereof, including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees, acting singly
or jointly, shall have the exclusive power, duty and authority to act on behalf
of the Trust with respect to the following matters:
(i) to acquire the Subordinated Debentures with the proceeds of the
sale of the Trust Securities; provided, however, the Administrative Trustees
shall cause legal title to all of the Subordinated Debentures to be vested in,
and the Subordinated Debentures to be held of record in the name of, the
Property Trustee for the benefit of the Trust and the Holders of the Trust
Securities;
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(ii) to deliver to the Depositor and the Property Trustee prompt
written notice of the occurrence of any Special Event (as defined in the
Supplemental Indenture) and to take any ministerial actions in connection
therewith; provided that the Administrative Trustees shall consult with the
Depositor and the Property Trustee before taking or refraining to take any
ministerial action in relation to a Special Event;
(iii) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including for the
purposes of Section 316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions, and exchanges, and to issue relevant
notices to Holders of the Trust Securities as to such actions and applicable
record dates;
(iv) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 2.07(B)(v), the Property Trustee
has the power to bring such Legal Action;
(v) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(vi) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(vii) to give the certificate to the Property Trustee required by
Section 314(a)(4) of the Trust Indenture Act, which certificate may be executed
by any Administrative Trustee;
(viii) to take all actions and perform such duties as may be required
of the Administrative Trustees pursuant to the terms of this Trust Agreement;
(ix) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Trust
Securities or to enable the Trust to effect the purposes for which the Trust has
been created;
(x) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Administrative Trustees, on
behalf of the Trust;
(xi) to issue and sell the Trust Securities;
(xii) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Expense Agreement and such other agreements
as may be necessary or desirable in connection with the consummation hereof;
(xiii) to assist in the registration of the Trust Preferred Securities
under the Securities Act and under state securities or blue sky laws, and the
qualification of the Trust Agreement as a trust indenture under the Trust
Indenture Act;
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(xiv) to assist in the listing of the Trust Preferred Securities upon
the NASDAQ National Market and such securities exchange or exchanges as shall be
determined by the Depositor and, if required, the registration of the Trust
Preferred Securities under the Exchange Act, and the preparation and filing of
all periodic and other reports and other documents pursuant to the foregoing;
(xv) to send notices (other than notices of default) and other
information regarding the Trust Securities and the Subordinated Debentures to
the Securityholders in accordance with this Trust Agreement;
(xvi) to appoint a Paying Agent (subject to Section 5.09),
authenticating agent and Security Registrar in accordance with this Trust
Agreement;
(xvii) to register transfers of the Trust Securities in accordance
with this Trust Agreement;
(xviii) to assist in the winding up of the affairs of and termination
of the Trust as provided in this Trust Agreement; and
(xix) to take any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
(B) As among the Trustees, the Property Trustee shall have the
exclusive power, duty and authority to act on behalf of the Trust with respect
to the following matters:
(i) engage in such ministerial activities as shall be necessary or
appropriate to effect promptly the redemption of the Trust Securities to the
extent the Subordinated Debentures are redeemed or mature;
(ii) upon notice of distribution issued by the Administrative
Trustees in accordance with the terms of this Trust Agreement, engage in such
ministerial activities as shall be necessary or appropriate to effect promptly
the distribution pursuant to the terms of this Trust Agreement of Subordinated
Debentures to Holders of Trust Securities;
(iii) subject to the terms hereof, exercise all of the rights, powers
and privileges of a holder of the Subordinated Debentures under the Subordinated
Debenture Indenture and, if an Event of Default occurs and is continuing,
enforce for the benefit of, and subject to the rights of, the Holders of the
Trust Securities, its rights as holder of the Subordinated Debentures under the
Subordinated Debenture Indenture;
(iv) take all actions and perform such duties as may be specifically
required of the Property Trustee pursuant to the terms of this Trust Agreement;
(v) take any Legal Action which arises out of or in connection with
an Event of Default or the Property Trustee's duties and obligations under this
Trust Agreement, the Delaware Business Trust Act or the Trust Indenture Act;
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(vi) the establishment and maintenance of the Payment Account;
(vii) the receipt of and holding of legal title to the Subordinated
Debentures as described herein;
(viii) the collection of interest, principal and any other payments
made in respect of the Subordinated Debentures in the Payment Account;
(ix) the distribution of amounts received in the Payment Account and
owed to the Securityholders in respect of the Trust Securities;
(x) the sending of notices of default and other information
regarding the Trust Securities and the Subordinated Debentures to the
Securityholders in accordance with this Trust Agreement;
(xi) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(xii) the winding up of the affairs of and termination of the Trust
as provided in this Trust Agreement, and the preparation, execution and filing
of the certificate of cancellation with the Secretary of State of the State of
Delaware; and
(xiii) the taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary, appropriate,
convenient or advisable to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the effect of any such
action on any particular Securityholder).
(C) So long as this Trust Agreement remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activity or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees acting on behalf of the Trust
shall not (i) acquire any investments or engage in any activities not authorized
by this Trust Agreement, (ii) sell, assign, transfer, exchange, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify as a grantor
trust for United States federal income tax purposes, (iv) incur any indebtedness
for borrowed money, (v) take or consent to any action that would result in the
placement of a Lien on any of the Trust Property, (vi) issue any securities
other than the Trust Securities, or (vii) have any power to, or agree to any
action by the Depositor that would, vary the investment (within the meaning of
Treasury Regulation Section 301.7701-4(c)) of the Trust or of the
Securityholders. The Trustees shall defend all claims and demands of all Persons
at any time claiming any Lien on any of the Trust Property adverse to the
interest of the Trust or the Securityholders in their capacity as
Securityholders.
(D) In connection with the issue and sale of the Trust Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
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(i) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 under the Securities Act in relation to the
Trust Preferred Securities, including any amendments thereto;
(ii) to determine the states in which to take appropriate action to
qualify or register for sale all or part of the Trust Preferred Securities and
to do any and all such acts, other than actions which must be taken by or on
behalf of the Trust, and advise the Trustees of actions they must take on behalf
of the Trust, and prepare for execution and filing any documents to be executed
and filed by the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of any such
states;
(iii) to prepare for filing by the Trust an application to any other
national stock exchange or the NASDAQ National Market for listing upon notice of
issuance of any Trust Preferred Securities;
(iv) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the Trust
Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto;
(v) to negotiate the terms of the Underwriting Agreement providing
for the sale of the Trust Preferred Securities and to execute, deliver and
perform the Underwriting Agreement on behalf of the Trust;
(vi) to negotiate the terms of an agreement with the Depository
Trust Company relating to the Trust Preferred Securities and to execute, deliver
and perform the agreement on behalf of the Trust; and
(vii) any other actions necessary, incidental, appropriate or
convenient to carry out any of the foregoing activities.
(E) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act,
or taxed as other than a grantor trust for United States federal income tax
purposes and so that the Subordinated Debentures will be treated as indebtedness
of the Depositor for United States federal income tax purposes. In this
connection, the Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate of Trust or
this Trust Agreement, that each of the Depositor and the Administrative Trustees
determines in its discretion to be necessary or desirable for such purposes, as
long as such action does not materially and adversely affect the interests of
the Holders of the Trust Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust shall consist of
the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Securityholders and the Trust in accordance with this Trust Agreement. The
right, title and interest of the Property Trustee to the Subordinated
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Debentures shall vest automatically in each Person who may thereafter be
appointed as Property Trustee in accordance with the terms hereof. Such vesting
and cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered.
Section 2.10 Mergers and Consolidations of the Trust. The Trust shall
not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to any
corporation or other entity, except as described below. The Trust may at the
request of the Corporation, with the consent of the Administrative Trustees and,
unless an Event of Default shall have occurred and be continuing, without the
consent of the Holders, the Property Trustee or the Delaware Trustee,
consolidate, amalgamate, merge with or into, or be replaced by a trust organized
as such under the laws of any state; provided that (i) such successor entity
either (x) expressly assumes all of the obligations of the Trust with respect to
the Trust Securities or (y) substitutes for the Trust Securities other
securities having substantially the same terms as the Trust Securities (herein
referred to as the "Successor Securities") so long as the Successor Securities
rank the same as the Trust Securities rank in priority with respect to
Distributions and payments upon liquidation, redemption and otherwise, (ii) the
Corporation expressly appoints a trustee of such successor entity possessing
substantially the same powers and duties as the Property Trustee as the holder
of legal title to the Subordinated Debentures, (iii) the Trust Preferred
Securities or any Successor Securities are listed, or any Successor Securities
will be listed upon notification of issuance, on any national securities
exchange or other organization on which the Trust Preferred Securities are then
listed, (iv) such merger, consolidation, amalgamation or replacement does not
cause the Trust Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such consolidation, amalgamation, merger or replacement does not adversely
affect the rights, preferences and privileges of the Holders of the Trust
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 consolidation, amalgamation, merger or replacement,
the Corporation and the Property Trustee have received an Opinion of Counsel
experienced in such matters to the effect that (A) such consolidation,
amalgamation, merger or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Securities (including any
Successor Securities) in any material respect, and (B) following such
consolidation, amalgamation, merger or replacement, neither the Trust nor such
successor entity will be required to register as an investment company under the
Investment Company Act, and (viii) the Corporation owns all of the common
securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Trust Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of 100% in Liquidation Amount of the Trust
Securities, consolidate, amalgamate, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or the successor entity to be classified as
other than a grantor trust for United States federal income tax purposes.
ARTICLE III
PAYMENT ACCOUNT
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Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and an agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the 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 principal or interest on, and any other payments
or proceeds with respect to, the Subordinated Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 4.01 Distributions.
(a) Distributions on the Trust Securities shall be cumulative and
accrue from the Issue Date and, except in the event that the Depositor exercises
its right to extend the interest payment period for the Subordinated Debentures
pursuant to Section 104 of the Supplemental Indenture, shall be payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing on __________, ____. If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed at a
rate of _____% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any full quarterly period shall be computed
on the basis of twelve 30-day months and a 360-day year. If the interest payment
period for the Subordinated Debentures is extended pursuant to Section 104 of
the Supplemental Indenture (an "Extension Period"), then the rate per annum at
which Distributions on the Trust Securities accumulate shall be increased by an
amount such that the aggregate amount of Distributions that accumulate on all
Trust Securities during any such Extension Period is equal to the aggregate
amount of interest (including interest payable on unpaid interest at the
percentage rate per annum set forth above, compounded quarterly, to the extent
permitted by applicable law) that accrues during any such Extension Period on
the Subordinated Debentures. The payment of such deferred interest, together
with interest thereon, will be distributed, if and to the extent funds are
legally available
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therefor, to the Holders of the Trust Securities (as they appear on the books
and records of the Trust on the Record Date next following the termination of
such Extension Period) as received at the end of any Extension Period. The
amount of Distributions payable for any period shall include the Additional
Amounts, if any.
(c) Distributions on the Trust Securities shall be made and shall
be deemed payable on each Distribution Date only to the extent that the Trust
has legally and immediately available funds in the Payment Account for the
payment of such Distributions.
(d) Distributions (including Additional Amounts, if any) on the
Trust Securities on each Distribution Date shall be payable to the Holders
thereof as they appear on the Security Register for the Trust Securities on the
relevant record date, which shall be the close of business on the fifteenth
calendar day prior to the relevant Distribution Date. Each Trust Security, upon
registration of transfer of or in exchange for or in lieu of any other Trust
Security, shall carry the rights of Distributions accrued (including Additional
Amounts, if any) and unpaid, and to accrue (including Additional Amounts, if
any), which were carried by such other Trust Security.
Section 4.02 Redemption.
(a) On each Redemption Date with respect to the Subordinated
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. Any notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the total Liquidation Amount of the Trust Securities to be redeemed;
and
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and the
Distributions thereon will cease to accrue on and after such date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Subordinated Debentures. Redemptions of the Trust Securities shall
be made and the Redemption Price shall be deemed payable on each Redemption Date
only to the extent that the Trust has funds legally and immediately available in
the Payment Account for the payment of such Redemption Price.
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(d) If the Property Trustee gives a notice of redemption in respect
of any Trust Preferred Securities which notice when given shall become
irrevocable, then, by 2:00 P.M. New York City time, on the Redemption Date,
subject to Section 4.02(c), the Property Trustee will, so long as the Trust
Preferred Securities are in book-entry only form, irrevocably deposit with the
Clearing Agency for the Trust Preferred Securities funds sufficient to pay the
applicable Redemption Price. If the Trust Preferred Securities are not in
book-entry only form, the Property Trustee, subject to Section 4.02(c), shall
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable instructions to pay
the Redemption Price to the Holders thereof upon surrender of their Trust
Preferred Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Security Register for the Trust Securities on the relevant record
dates for the related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then immediately prior to the close
of business on the date of such deposit, all rights of Securityholders holding
Trust Securities so called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price, but without interest, and such
Securities will cease to be outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, payment of such Redemption Price shall be made on the immediately
preceding Business, Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
Trust Securities is improperly withheld or refused and not paid either by the
Trust or by the Depositor pursuant to the Trust Guarantee, Distributions on such
Trust Securities will continue to accrue at the then applicable rate, from such
Redemption Date originally established by the Trust for such Trust Preferred
Securities to the date such Redemption Price is actually paid.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the recordholders thereof as they appear on the Security Register for
the Trust Securities on the relevant record date, which shall be the close of
business on the fifteenth calendar day prior to the Redemption Date.
(f) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated 3% to the Trust Common Securities
and 97% to the Trust Preferred Securities, with such adjustments that each
amount so allocated shall be divisible by $25. The particular Trust Preferred
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding Trust Preferred
Securities not previously called for redemption, by such method as the Property
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to $25 or integral multiples thereof of the
Liquidation Amount of Trust Preferred Securities of a denomination larger than
$25); provided, however, that before undertaking redemption of the Trust
Preferred Securities on other than a pro rata basis, the Property Trustee shall
have received an Opinion of Counsel that the status of the Trust as a grantor
trust for United States federal income tax purposes would not be adversely
affected. The Property
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Trustee shall promptly notify the Security Registrar in writing of the Trust
Preferred Securities selected for redemption and, in the case of any Trust
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of Trust
Preferred Securities shall relate, in the case of any Trust Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Trust Preferred Securities which has been or is to be redeemed.
(g) Subject to the foregoing provisions of this Section 4.02 and to
applicable law (including, without limitation, United States federal securities
laws), the Corporation or its Affiliates may, at any time and from time to time,
purchase outstanding Trust Preferred Securities by tender, in the open market or
by private agreement.
Section 4.03 Subordination of Trust Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made pro rata based on the respective Liquidation Amounts
of the applicable Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date a Debenture Indenture Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of, any Trust Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Trust Common Securities, shall be made unless payment in
full in cash of all accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Trust Preferred Securities for all
distribution periods terminating on or prior thereto, or in the case of payment
of the Redemption Price the full amount of such Redemption Price on all
Outstanding Trust Preferred Securities, shall have been made or provided for,
and in funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Trust
Preferred Securities then due and payable.
(b) In the case of the occurrence of any Debenture Indenture Event
of Default, the Holder of Trust Common Securities will be deemed to have waived
any such Event of Default under this Trust Agreement until the effect of all
such Events of Default with respect to the Trust Preferred Securities have been
cured, waived or otherwise eliminated. Until any such Events of Default under
this Trust Agreement with respect to the Trust Preferred Securities have been so
cured, waived or otherwise eliminated, the Property Trustee shall act solely on
behalf of the Holders of the Trust Preferred Securities and not the Holder of
the Trust Common Securities, and only the Holders of the Trust Preferred
Securities will have the right to direct the Property Trustee to act on their
behalf.
Section 4.04 Payment Procedures. Payments in respect of the Trust
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Security Register or, if
the Trust Preferred Securities are held by a Clearing Agency, such Distributions
shall be made to the Clearing Agency, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable distribution dates.
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Payments in respect of the Trust Common Securities shall be made in such manner
as shall be mutually agreed between the Property Trustee and the Holder of the
Trust Common Securities.
Section 4.05 Tax Returns and Reports. The Administrative Trustee(s)
shall prepare (or cause to be prepared), at the Depositor's expense, 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. The Administrative
Trustee(s) shall provide or cause to be provided on a timely basis to each
Holder any Internal Revenue Service form required to be so provided in respect
of the Trust Securities.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.01 Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.03 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
Section 5.02 The Trust Securities Certificates. Each of the Trust
Preferred and Trust Common Securities Certificates shall be issued by the
Administrative Trustees in minimum denominations of $25 and integral multiples
in excess thereof. The Trust Securities Certificates shall be executed on behalf
of the Trust by manual or facsimile signature of at least one Administrative
Trustee. Trust Securities Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Trust Securities Certificates or did not
hold such offices at the date of authentication and delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04.
Section 5.03 Authentication of Trust Securities Certificates. On the
Issue Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust, authenticated and delivered to
or upon the written order of the Depositor signed by its Chairman of the Board,
its President or any Vice President, without further corporate action by the
Depositor, in authorized denominations. No Trust Securities Certificate shall
entitle its Holder to any benefit under this Trust Agreement, or shall be valid
for any purpose, unless there shall appear on such Trust Securities Certificate
a certificate of authentication substantially in the form set forth in Exhibit D
or Exhibit C, as applicable, executed by at least one Administrative Trustee by
manual signature; such authentication shall constitute conclusive evidence that
such Trust Securities Certificate shall have been duly authenticated and
delivered hereunder. All Trust Securities Certificates shall be dated the date
of their authentication.
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Section 5.04 Registration of Transfer and Exchange of Trust Preferred
Securities Certificates. The Security Registrar shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 5.08, a Security Register
in which, subject to such reasonable regulations as it may prescribe, the
Security Registrar shall provide for the registration of Trust Preferred
Securities Certificates and the Trust Common Securities Certificates (subject to
Section 5.10 in the case of the Trust Common Securities Certificates) and
registration of transfers and exchanges of Trust Preferred Securities
Certificates as herein provided. The Property Trustee shall be the initial
Security Registrar.
Upon surrender for registration of transfer of any Trust Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees shall execute, authenticate 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 authentication by the
Administrative Trustee or Trustees. The Security 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 5.08.
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 Administrative Trustees and
the Security Registrar duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Trust Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Security Registrar 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 Security Registrar
or the Administrative Trustees 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 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Security Registrar, or if the Security Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Security
Registrar and the Administrative Trustees 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 Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees or any one of them on behalf of the Trust
shall execute and authenticate and make available for delivery, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Security
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an
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ownership interest in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Trust Securities Certificate shall be found at any
time.
Section 5.06 Persons Deemed Securityholders. Prior to due presentation
of a Trust Securities Certificate for registration of transfer, the Trustees or
the Security Registrar shall treat the Person in whose name any Trust Securities
Certificate shall be registered in the Security Register as the owner of such
Trust Securities Certificate for the purpose of receiving Distributions (subject
to Section 4.01(d)) and for all other purposes whatsoever, and neither the
Trustees nor the Security Registrar shall be bound by any notice to the
contrary.
Section 5.07 Access to List of Securityholders' Names and Addresses.
The Administrative Trustees shall furnish or cause to be furnished to (i) the
Depositor and the Property Trustee semi-annually, not later than June 1 and
December 1 in each year and (ii) the Depositor or the Property Trustee, as the
case may be, within 30 days after receipt by any Administrative Trustee of a
request therefor from the Depositor or the Property Trustee, as the case may be,
in writing, a list, in such form as the Depositor or the Property Trustee, as
the case may be, may reasonably require, of the names and addresses of the
Securityholders as of a date not more than 15 days prior to the time such list
is furnished; provided that the Administrative Trustees shall not be obligated
to provide such list at any time such list does not differ from the most recent
list given to the Depositor and the Property Trustee by the Administrative
Trustees or at any time the Property Trustee is the Security Registrar. If three
or more Securityholders or one or more Holders of Trust Securities Certificates
evidencing not less than 25% of the outstanding Liquidation Amount apply in
writing to the Administrative Trustees, and such application states that the
applicants desire to communicate with other Securityholders with respect to
their rights under this Trust Agreement or under the Trust Securities
Certificates and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Administrative Trustees
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Securityholders. Each Holder, by receiving and holding a Trust Securities
Certificate, shall be deemed to have agreed not to hold either the Depositor or
the Administrative Trustees accountable by reason of the disclosure of its name
and address, regardless of the source from which such information was derived.
Section 5.08 Maintenance of Office or Agency. The Administrative
Trustees shall maintain in the Borough of Manhattan, New York, 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 Trustees in respect of the Trust Securities Certificates
may be served. The Administrative Trustees initially designate Bank One Trust
Company, NA, c/o First Chicago Trust Company of New York, 14 Wall Street, 8th
Floor, Window 2, New York, New York 10005 as the principal agency for such
purposes. The Administrative Trustees shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Security Register or any such office or agency.
Section 5.09 Appointment of Paying Agent. The Paying Agent shall make
Distributions and other payments provided hereby to Securityholders from the
Payment Account and shall report the amounts of such Distributions and payments
to the Administrative Trustees and if such Paying Agent shall be other than the
Property Trustee to the Property
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Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account for the purpose of making the Distributions and payments
provided hereby. The Administrative Trustees may revoke such power and remove
the Paying Agent if such Trustees determine in their 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
Property Trustee, and it may choose any co-paying agent that is acceptable to
the Administrative Trustees and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees and the Depositor. In the event that a Paying Agent
shall resign or be removed, the Administrative Trustees shall appoint a
successor that is acceptable to the Depositor to act as Paying Agent (which
shall be a bank or trust company). The Administrative Trustees shall cause such
successor Paying Agent or any additional Paying Agent appointed by the
Administrative Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Securityholders in trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply to
the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee 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 Ownership of Trust Common Securities by Depositor. On the
Issue Date, the Depositor shall acquire, and thereafter retain, beneficial and
record ownership of the Trust Common Securities. Any attempted transfer of the
Trust Common Securities, except for transfers by operation of law or to an
Affiliate of the Depositor or a permitted successor under Section 801 of the
Subordinated Debenture Indenture, shall be void. The Administrative Trustees
shall cause each Trust Common Securities Certificate issued to the Depositor and
its permitted transferees to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST AGREEMENT REFERRED TO HEREIN".
Section 5.11 Book-Entry Trust Preferred Securities Certificates; Trust
Common Securities Certificate.
(a) 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 Security
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no 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 5.13. Unless and until Definitive
Trust Preferred Securities Certificates have been issued to Owners pursuant to
Section 5.13:
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(i) the provisions of this Section 5.11(a) shall be in full force
and effect;
(ii) the Security Registrar 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 principal of and interest on the Book-Entry Trust Preferred Securities 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;
(iii) to the extent that the provisions of this Section conflict with
any other provisions of this Trust Agreement, the provisions of this Section
shall control;
(iv) 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, agreements between such Owners and
the Clearing Agency and/or the Clearing Agency Participants and the applicable
rules of the Clearing Agency. Unless and until Definitive Trust Preferred
Securities Certificates are issued pursuant to Section 5.13, the 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; and
(v) whenever this Trust Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Trust Preferred
Securities Certificates evidencing a specified percentage of the aggregate
Liquidation Amount, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such effect
from Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
applicable class of Trust Preferred Securities Certificates and has delivered
such instructions to the Trustees.
(b) A single Trust Common Securities Certificate representing the
Trust Common Securities shall be issued to the Depositor in the form of a
definitive Trust Common Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent 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 5.13, 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 5.13 Definitive Trust Preferred Securities Certificates. If (i)
the Depositor advises the Trustees 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 within 90 days of receipt by the Depositor of such
written advice, or (ii) the Depositor at its option advises the Trustees in
writing that it elects to terminate the book-entry system through the Clearing
Agency, then the Administrative Trustees shall notify the Clearing Agency and
Holders of the Trust Preferred Securities. Upon surrender to the Administrative
Trustees of the typewritten Trust Preferred Securities
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Certificate or Certificates representing the Book-Entry Trust Preferred
Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees or any one of them shall execute and
authenticate the Definitive Trust Preferred Securities Certificates in
accordance with the instructions of the Clearing Agency. Neither the Security
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 Trustees 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
Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
Section 5.14 Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than the undivided beneficial ownership interest in
the assets of the Trust conferred by their Trust Securities, and they shall have
no right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or other 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. Except as
otherwise provided in the Expense Agreement and Section 10.01 hereof with
respect to the Depositor, the Holders of the Trust Securities 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.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.10 or Section
10.03 of this Trust Agreement, in the Subordinated Debenture Indenture, 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
Securities Certificates, be construed so as to constitute the Securityholders
from time to time as joint venturers, partners or members of an association.
(b) So long as any Subordinated Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
executing any trust or power conferred on the Indenture Trustee with respect to
such Subordinated Debentures, (ii) consent to waive any past default which is
waivable under Section 513 of the Subordinated Debenture Indenture, (iii)
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exercise any right to rescind or annul a declaration that the principal of all
the Subordinated Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Subordinated Debenture Indenture
or the Subordinated Debentures, where such consent shall be required, or to any
other action, as holder of the Subordinated Debentures, under the Subordinated
Debenture Indenture, without, in each case, obtaining the prior approval of the
Holders of at least 66-2/3% in Liquidation Amount of the Outstanding Trust
Preferred Securities; provided, however, that where a consent under the
Subordinated Debenture Indenture would require the consent of each holder of
Subordinated Debentures affected thereby, no such consent shall be given by the
Trustees without the prior written consent of each Holder of Trust Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Trust Preferred Securities, except pursuant
to a subsequent vote of the Holders of Trust Preferred Securities. The Property
Trustee shall notify all Holders of the Trust Preferred Securities of any notice
of default received from the Indenture Trustee with respect to the Subordinated
Debentures.
(c) If any proposed amendment to the Trust Agreement provides for,
or the Trustees otherwise propose to effect, (i) any action that would adversely
affect the powers, preferences or special rights of the Trust Preferred
Securities, whether by way of amendment to this 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 66-2/3% in Liquidation Amount of the
Outstanding Trust Preferred Securities.
(d) Notwithstanding that holders of Trust Preferred Securities are
entitled to vote under the circumstances described in Section 6.01(b) and
6.01(c), any of the Trust Preferred Securities that are owned (whether of record
or beneficially) by the Corporation, the Administrative Trustees or any
Affiliate of the Corporation or any Administrative Trustee shall, for purposes
of such vote, be treated as if they were not outstanding.
Section 6.02 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 Administrative Trustees pursuant to Section 10.08 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. Any and all notice to which any Trust Preferred
Securityholder hereunder may be entitled and any and all communications shall be
deemed duly served or given if mailed, postage prepaid, addressed to any Trust
Preferred Securityholders of record at his last known address as recorded on the
Security Register.
Section 6.03 Meetings of Trust Preferred Securityholders. No annual
meeting of Securityholders is required to be held. The Administrative Trustees,
however, shall call a meeting of Securityholders to vote on any matter upon the
written request of the Trust Preferred Securityholders of record of 25% of the
Trust Preferred Securities (based upon their Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time
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in their discretion, call a meeting of Trust Preferred Securityholders to vote
on any matters as to which Trust Preferred Securityholders are entitled to vote.
Trust Preferred Securityholders of record of 50% of the 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 more
than 66-2/3% 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 the action of the
Securityholders, unless this Trust Agreement requires a greater proportion of
affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be entitled to one
vote for each $25 of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote may vote by proxy, provided that no proxy shall
be voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. 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 Securities are held jointly by several Persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent. Any action which
may be taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding at least 66-2/3% of all outstanding Trust Securities
entitled to vote in respect of such action (or such other proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing (based upon their Liquidation Amount).
Section 6.07 Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action,
the Administrative Trustees may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
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Section 6.08 Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent appointed
in writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered to the
Administrative Trustees. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Securityholders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustees deem sufficient.
The ownership of Trust Preferred Securities shall be proved by the
Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Holders of Trust Securities and
the Administrative Trustees or among such Securityholders or Trustees with
respect to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.09 Inspection of Records. Upon reasonable notice to the
Trustees, 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.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
Section 7.01 Representations and Warranties of the Property Trustee and
Delaware Trustee. The Bank in its separate corporate capacity and as the
Property Trustee and Bank One Delaware, Inc. in its separate corporate
capacity and as the Delaware Trustee, each on behalf of and as to itself, hereby
represents and warrants for the benefit of the Depositor and the Securityholders
that:
(a) the Bank is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws of the State of
Michigan, and Bank One Delaware, Inc. is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) each of the Bank in its separate corporate capacity and in its
capacity as the Property Trustee and Bank One Delaware, Inc. in its separate
corporate capacity and in its capacity as the Delaware Trustee has full
corporate power, authority and legal right to execute, deliver this Trust
Agreement and to perform their obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by each of 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 it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance of this Trust Agreement
and the consummation of the transactions contemplated thereby by each of the
Bank in its capacity as the Property Trustee and by Bank One Delaware, Inc. in
its capacity as Delaware Trustee of this Trust Agreement have been duly
authorized by all necessary corporate action on the part of the Bank in its
separate corporate capacity and as Property Trustee, and by Bank One Delaware,
Inc. in its separate corporate capacity and as the Delaware Trustee and do not
require any approval of stockholders of the Bank or of Bank One Delaware, Inc.
and such execution, delivery and performance will not (i) violate the Bank's or
Bank One Delaware, Inc.'s charter or by-laws, or (ii) violate any law,
governmental rule or regulation of the United States or the States of Michigan
or Delaware, as the case may be, governing the banking, trust, or corporate
powers (as appropriate in context) of the Bank in its separate corporate
capacity and in its capacity as the Property Trustee or of Bank One Delaware,
Inc. in its capacity as the Delaware Trustee or in its separate corporate
capacity, (as appropriate in context) or any indenture, mortgage, bank credit
agreement, note or bond purchase agreement, long-term lease, license or other
agreement or any order, judgment or decree applicable to the Bank, the Property
Trustee, Bank One Delaware, Inc. or the Delaware Trustee; and
(e) neither the authorization, execution, delivery or performance
by the Bank, the Delaware Corporation, the Property Trustee, or the Delaware
Trustee of this Trust Agreement, nor the consummation of any of the transactions
by the Bank, the Delaware Corporation, the Property
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Trustee or the Delaware Trustee (as appropriate in context) contemplated herein
or therein, nor the issuance of the Trust Securities Certificates pursuant to
this Trust Agreement require the consent or approval of, the withholding of
objection on the part of, the giving of notice to, the filing, the registration,
or the qualification with or the taking of any other action with respect to any
governmental authority or agency under any existing federal, Michigan, or
Delaware law governing the banking, trust, or corporate powers of the Property
Trustee or the Delaware Trustee (as appropriate in context).
(f) There are no proceedings pending or threatened against the Bank,
the Delaware Corporation, 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 have a material adverse
effect on the right, power and authority of the Bank, the Delaware Corporation,
the Property Trustee or the Delaware Trustee to enter into or perform its
obligations under this Trust Agreement.
Section 7.02 Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at the 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 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 VIII
THE TRUSTEES
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and the Delaware Business Trust Act and, in
the case of the Property Trustee, 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 reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to them. Whether or not therein expressly so provided,
every provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section.
(b) All payments made by the Property Trustee in respect of the Trust
Securities shall be made only from the income and proceeds from the Trust
Property and only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee to make payments
in accordance with the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income and proceeds from
the Trust Property to the extent available for distribution to it as herein
provided and that the Trustees are not personally liable to such Holder for any
amount distributable in respect of any Trust Security or for any other liability
in respect of any Trust Security. This Section
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8.01(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
Section 8.02 Notice of Defaults. Within 90 days after the occurrence of
any default known to the Property Trustee, the Property Trustee shall transmit,
in the manner and to the extent provided in Section 10.08, notice of any such
default to the Securityholders, the Administrative Trustees and the Depositor,
unless such default shall have been cured or waived. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
Section 8.03 Certain Rights of Property Trustee. Subject to the
provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) if (A) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action, or
(B) in construing any of the provisions in this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein, or (C) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Trust Preferred Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken. The Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith negligence or willful misconduct;
(iii) the Property Trustee may consult with counsel of its selection
and the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(iv) 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;
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(v) 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 or other document, unless requested in writing to do so by one or
more Securityholders; and
(vi) 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.
Section 8.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Depositor, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities in
accordance with Sections 2.04 and 2.05.
The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless an officer of the Property Trustee
assigned to its Corporate Trustee administrative department shall have received
written notice from the Corporation, any Holder or any other Trustee that such
funds are not legally available.
Section 8.05 Trustee May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of the Trustees or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.06 Compensation; Fees; Indemnity.
The Depositor agrees:
(1) to pay to the Trustees from time to time reasonable compensation
for all services rendered by the Trustees hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
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 their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their negligence, willful
misconduct or bad faith; and
(3) to indemnify the Trustees for, and to hold the Trustees harmless
against, any and all loss, damage, claims, liability or expense incurred without
negligence, willful misconduct or bad faith on their part, arising out of or in
connection with the acceptance or administration of this Trust Agreement,
including the costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
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The provisions of this Section 8.06 shall survive the termination of
this Trust Agreement or the resignation or removal of any Trustee.
Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that has
a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age and
a resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware that shall act through one or more
persons authorized to bind such entity.
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. To the extent permitted by the Trust Indenture Act, the Property
Trustee shall not be deemed to have a conflicting interest by virtue of being
trustee under the Trust Guarantee. Subject to the foregoing, 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 Securityholders 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, (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 8.09 Co-Property Trustees and Separate Trustee.
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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 Holder of the Trust Common Securities
and the Property Trustee shall have power to appoint, and upon the written
request of the Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-property trustee, jointly
with the Property Trustee, of all or any part of such Trust Property, or to act
as separate trustee of any such Trust 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 Agreement. If
the Depositor does not join in such appointment within 15 days after the receipt
by it of a request so to do, or in case an Debenture Indenture Event of Default
has occurred and is continuing, the Property Trustee alone shall have power to
make such appointment. Any co-property trustee or separate trustee appointed
pursuant to this Section shall satisfy the requirements of Section 8.07.
Should any written instrument from the Depositor be required by any
co-property trustee or separate trustee so appointed for more fully confirming
to such co-property 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-property trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(i) The Trust Securities shall be executed, authenticated and
delivered and all rights, powers, duties, and obligations hereunder in respect
of the custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees hereunder, shall be
exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-property trustee or
separate trustee jointly, as shall be provided in the instrument appointing such
co-property 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-property trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-property trustee or separate trustee appointed
under this Section, and, in case an Debenture Indenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-property 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
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successor to any co-property trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section.
(iv) No co-property trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee, or
any other such trustee hereunder.
(v) The Trustees shall not be liable by reason of any act of a
co-property trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-property 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 Holders. 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 resigning Relevant Trustee may petition, at
the expense of the Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless an Debenture Indenture Event of Default shall have occurred and
be continuing, any Trustee may be removed at any time by Act of the Holder of
the Trust Common Securities. If a Debenture Indenture 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 Liquidation Amount of the Trust Preferred Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Holder of the Trust Common
Securities at any time. In no event will the Holders of the Trust Preferred
Securities have a right to vote to appoint, remove or replace the Administrative
Trustees.
If any Trustee shall resign, be removed or become incapable of
continuing to act as Trustee, or if a vacancy shall occur in the office of any
Trustee for any reason, at a time when no Debenture Indenture Event of Default
shall have occurred and be continuing, the Holder of the Trust Common
Securities, by its Act of the Holders of the Trust Common Securities, shall
promptly appoint a successor Trustee or successor Trustees, and each 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, or a vacancy shall occur in the office of any such Trustee
for any reason, at a time when an Debenture Indenture Event of Default shall
have occurred and be continuing, the Holders of Trust Preferred Securities, by
Act of the Holders of a majority in Liquidation Amount of the Trust Preferred
Securities then Outstanding, shall promptly appoint a successor Relevant Trustee
or Relevant Trustees and
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such successor Relevant Trustee or Relevant Trustees shall comply with the
applicable requirements of Section 8.11. If an Administrative Trustee shall
resign, be removed or become incapable of acting as Administrative Trustee, or a
vacancy shall occur in the office of any such Trustee for any reason, at a time
when a Debenture Indenture Event of Default shall have occurred and be
continuing, the Holder of the Trust Common Securities, by Act of the Holder of
the Trust Common Securities, shall promptly appoint a successor Administrative
Trustee or Administrative Trustees and such successor Administrative Trustee or
Administrative Trustees shall comply with the applicable requirements of Section
8.11. If no successor Relevant Trustee shall have been so appointed in
accordance with this Section 8.10 and accepted appointment in the manner
required by Section 8.11, any Holder who has been a Holder of Trust Securities
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all Holders
in the manner provided in Section 10.08 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 Administrative Trustee or a 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 (i) the act of the remaining Administrative Trustee or (ii)
otherwise by the Depositor (with the successor in each case being a Person who
satisfies the eligibility requirements for an Administrative Trustee or a
Delaware Trustee, as the case may be, set forth in Section 8.07).
Section 8.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, every such successor
Relevant Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee; but, on the request
of the Depositor or the successor Relevant Trustee, such retiring Relevant
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Relevant Trustee all the rights, powers and
trusts of the retiring Relevant Trustee and shall duly assign, transfer and
deliver to such successor Relevant Trustee all property and money held by such
retiring Relevant Trustee hereunder.
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 preceding paragraph.
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.
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Section 8.12 Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against Depositor or
Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Subordinated Debentures or
the Trust Securities), the Property Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims against the
Depositor or Trust (or any such other obligor). For purposes of Section
311(b)(4) and (6) of the Trust Indenture Act:
(a) "cash transaction" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Depositor or the Trust (or any such obligor) for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Property
Trustee simultaneously with the creation of the creditor relationship with the
Depositor or the Trust (or any such obligor) arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
Section 8.14 Reports by Property Trustee.
(a) Within 60 days after May 15th of each year commencing with May
15, 2000, if required by Section 313(a) of the Trust Indenture Act, the Property
Trustee shall transmit a brief report dated as of such May 15 with respect to
any of the events specified in such Section 313(a) that may have occurred since
the later of the date of this Trust Agreement or the preceding May 15.
(b) The Property Trustee shall transmit to Securityholders the
reports required by Section 313(b) of the Trust Indenture Act at the times
specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and (d) of the Trust
Indenture Act.
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Section 8.15 Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and, within 120 days after the end of each
fiscal year of the Depositor, the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act in the form and in the manner required by
Section 314 of the Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions Precedent. Each of
the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement 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 pursuant to Section 314(c)(1) of the
Trust Indenture Act shall comply with Section 314(e) of the Trust Indenture Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be four, provided that the
Depositor by written instrument may increase the number of Administrative
Trustees or decrease the number to one but not to zero.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all powers granted to the
Administrative Trustees and shall discharge the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee, may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.07(A), including any registration statement or amendment thereto filed with
the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number the doing of such things and the execution
of such instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
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Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders.
If a Debenture Indenture Event of Default occurs and is continuing,
then (i) the Holders of Trust Preferred Securities will rely on the enforcement
by the Property Trustee of its rights against the Corporation as the holder of
the Subordinated Debentures and (ii) the Holders of a majority in aggregate
Liquidation Amount of the Trust Preferred Securities will have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Property Trustee or to direct the exercise of any trust or
power conferred upon the Property Trustee under this Trust Agreement, including
the right to direct the Property Trustee to exercise the remedies available to
it as a holder of the Subordinated Debentures, provided that such direction
shall not be in conflict with any rule of law or with this Trust Agreement, and
could not involve the Property Trustee in personal liability in circumstances
where reasonable indemnity would not be adequate. If the Property Trustee fails
to enforce its rights under the Subordinated Debentures, a Holder of Trust
Preferred Securities may, to the extent permitted by applicable law, institute a
legal proceeding against the Corporation to enforce its rights under this Trust
Agreement without first instituting any legal proceeding against the Property
Trustee or any other Person, including the Trust; it being understood and
intended that no one or more of such Holders shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this Trust
Agreement to affect, disturb or prejudice the rights of any other of such
Holders or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Trust Agreement, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders. Notwithstanding the foregoing, a Holder of Trust Preferred Securities
may institute a legal proceeding directly against the Corporation without first
instituting a legal proceeding against or requesting or directing that action be
taken by the Property Trustee or any other Person, for enforcement of payment to
such Holder of principal of or interest on the Subordinated Debentures having a
principal amount equal to the aggregate stated Liquidation Amount of the Trust
Preferred Securities of such Holder on or after the due dates therefor specified
or provided for in the Subordinated Debentures. The Corporation shall be
subrogated to all rights of the Holders of Trust Preferred Securities in respect
of any amounts paid to such Holders by the Corporation pursuant to this Section.
ARTICLE IX
TERMINATION AND LIQUIDATION
Section 9.01 Termination Upon Expiration Date. The Trust shall
automatically terminate on ________________ (the "Expiration Date") or earlier
pursuant to Section 9.02 or 9.03.
Section 9.02 Early Termination. Upon the first to occur of any of the
following events (such first occurrence, an "Early Termination Event"), the
Trust shall be dissolved and terminated in accordance with the terms hereof:
(i) the occurrence of a Bankruptcy Event in respect of the Depositor,
dissolution or liquidation of the Depositor, or the dissolution of the Trust
pursuant to judicial decree;
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<PAGE> 47
(ii) the delivery of written direction to the Property Trustee by the
Depositor at any time (which direction is optional and wholly within the
discretion of the Depositor) to terminate the Trust and distribute the
Subordinated Debentures to Securityholders as provided in Section 9.04; and
(iii) the payment at maturity or redemption of all of the Subordinated
Debentures, and the consequent payment of the Trust Securities.
Section 9.03 Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the latest to occur of the following: (a) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02, of all amounts or instruments required to be distributed hereunder upon
the final payment of the Trust Securities; (b) the payment of any expenses owed
by the Trust; or (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii) of
Section 9.02 occurs, the Trust shall be liquidated and the Property Trustee
shall distribute the Subordinated Debentures to the Securityholders as provided
in this Section 9.04.
(b) In connection with a distribution of the Subordinated Debentures,
each Holder of Trust Securities shall be entitled to receive after the
satisfaction of liabilities to creditors of the Trust (as evidenced by a
certificate of the Administrative Trustees), a Like Amount of Subordinated
Debentures. Notice of liquidation shall be given by the Trustees by first-class
mail, postage prepaid, mailed not later than 30 nor more than 60 days prior to
the Liquidation Date to each Holder of Trust Securities at such Holder's address
appearing in the Security Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust Securities
Certificates not surrendered for exchange will be deemed to represent a Like
Amount of Subordinated Debentures; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Subordinated Debentures
as the Administrative Trustees or the Property Trustee shall deem appropriate.
(c) In order to effect the liquidation of the Trust and distribution
of the Subordinated Debentures to Securityholders, the Property Trustee shall
establish a record date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of
Subordinated Debentures in exchange for the Outstanding Trust Securities
Certificates.
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(d) After the Liquidation Date, (i) the Trust Securities will no
longer be deemed to be Outstanding, (ii) certificates representing a Like Amount
of Subordinated Debentures will be issued to Holders of Trust Securities
Certificates, upon surrender of such certificates to the Administrative Trustees
or their agent for exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of
Subordinated Debentures, accruing interest at the rate provided for in the
Subordinated Debentures from the last Distribution Date on which a Distribution
was made on such Trust Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of interest or
principal will be made to Holders of Trust Securities Certificates with respect
to such Subordinated Debentures) and (iv) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Subordinated Debentures upon surrender of Trust Securities Certificates.
(e) The Depositor will use its best efforts to have the Subordinated
Debentures that are distributed in exchange for the Trust Preferred Securities
listed on such securities exchange as the Trust Preferred Securities are then
listed. The Depositor may elect to have the Subordinated Debentures issued in
book-entry form to the Clearing Agency or its nominee.
Section 9.05 Bankruptcy. If an Early Termination Event specified in
clause (i) of Section 9.02 has occurred, the Trust shall be liquidated. The
Property Trustee shall distribute the Subordinated Debentures to the
Securityholders as provided in Section 9.04, unless such distribution is
determined by the Administrative Trustees not to be practical, in which event
the Holders will be entitled to receive out of the assets of the Trust available
for distribution to Securityholders, after satisfaction of liabilities to
creditors, an amount equal to the Liquidation Amount per Trust Security plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If such Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder
of the Trust Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, winding-up or termination pro rata
(determined as aforesaid) with Holders of Trust Preferred Securities, except
that, if an Debenture Indenture Event of Default has occurred and is continuing,
the Trust Preferred Securities shall have a priority over the Trust Common
Securities pursuant to Section 4.03.
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ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor irrevocably and unconditionally guarantees to
each person or entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to Holders of any Trust Securities or
other similar interests in the Trust the amounts due such Holders pursuant to
the terms of the Trust Preferred Securities or such other similar interests, as
the case may be. Such guarantee is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
Section 10.02 Limitation of Rights of Securityholders. The bankruptcy,
death or dissolution or incapacity of any Person having an interest, beneficial
or otherwise, in a Trust Security shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in and for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 10.03 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Administrative Trustees and the Depositor, without the consent of any
Securityholders and, except as provided in subsection (e) below, without the
consent of the Property Trustee or the Delaware Trustee, (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, provided,
however, that any such amendment shall not adversely affect in any material
respect the interests of any Securityholder, (ii) to modify, eliminate or add to
any provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will not be classified as other than a grantor trust for
United States federal income tax purposes at any time that any Trust Securities
are outstanding; provided, however, that, in the case of clause (i), any
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders or (iii) to provide the Property Trustee with the
authority to execute on behalf of the Administrative Trustees Definitive Trust
Preferred Securities Certificates.
(b) Except as provided in Section 10.03(c) hereof, any provision in
this Trust Agreement may be amended by the Trust or the Trustees with (i) the
consent of Securityholders representing not less than 66-2/3% (based upon
Liquidation Amounts) of the Trust Securities then Outstanding and (ii) receipt
by the Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States federal income
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tax purposes or the Trust's exemption from status of an "investment company"
under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution (or payment upon redemption) on the Trust Securities or otherwise
adversely affect the amount of any Distribution (or payment upon redemption)
required to be made in respect of the Trust Securities as of a specified date,
(ii) restrict the right of a Securityholder to institute suit for the
enforcement of any such payment on or after such date, (iii) change the purpose
of the Trust, (iv) authorize the issuance of any additional beneficial interests
in the Trust, or (v) change the consent required pursuant to this Section 10.03.
(d) Notwithstanding any other provisions of this Trust Agreement, the
Trustees shall not enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to be treated other than as a grantor
trust for United States federal income tax purposes or to fail or cease to
qualify for the exemption from status of an "investment company" under the
Investment Company Act of 1940, as amended, afforded by Rule 3a-5 thereunder.
(e) Without the consent of the Depositor, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor. Without the consent of the Property Trustee or the Delaware Trustee,
as the case may be, this Trust Agreement may not be amended in a manner which
affects the powers, duties or rights of the Property Trustee or the Delaware
Trustee, respectively. In executing any amendment permitted by this Trust
Agreement, the Trustees shall be entitled to receive, and (subject to Section
8.01) shall be fully protected in relying upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this Trust
Agreement. Any Trustee may, but shall not be obligated to, enter into any such
amendment which affects such Trustee's own rights, duties, immunities or
liabilities under this Trust Agreement or otherwise.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
Section 10.04 Separability. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.05 Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE.
Section 10.06 Notice of Deferral of Distribution. In the event that the
Depositor exercises its right to extend an interest payment period in respect of
the Subordinated Debentures pursuant to Section 104 of the Supplemental
Indenture and notice of such extension
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has been provided by the Depositor to the Property Trustee, the Property Trustee
shall give written notice of such extension and of the deferral of the related
Distribution on the Trust Securities, by first-class mail, postage prepaid,
mailed not later than ten days prior to the Distribution Date upon which such
Distribution would otherwise be payable, to each Holder of Trust Preferred
Securities at such Holder's address appearing in the Security Register.
Section 10.07 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.08 Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, first class postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (i) in the case of a Trust Preferred Securityholder, to
such Trust Preferred Securityholder as such Securityholder's name and address
appear on the Security Register and (ii) in the case of the Trust Common
Securityholder or the Depositor, to SEMCO Energy, Inc., 405 Water Street, P.O.
Box 5026, Port Huron, Michigan 48061-5026, Attention: Edric R. Mason, Jr.,
Facsimile No. (810) 989-4098. 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 or the Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the Property
Trustee, Bank One Trust Company, NA, Corporate Trust Administration, 11th Floor,
Suite 8110, 611 Woodward Avenue, Detroit, Michigan 48226; with respect to the
Delaware Trustee, Bank One Delaware, Inc., 3 Christina Centre, 201 N. Walnut
St., Wilmington, Delaware 19801, Attention: Corporate Trust Services Division,
with a copy to Bank One Trust Company, NA, Corporate Trust Administration, 11th
Floor, Suite 8110, 611 Woodward Avenue, Detroit, Michigan 48226, as the case may
be; and (ii) with respect to the Administrative Trustees, to them at the address
above for notices to the Depositor, marked Attention: Administrative Trustees of
SEMCO Capital Trust II, c/o SEMCO Energy, Inc., 405 Water Street, P.O. Box 5026,
Port Huron, Michigan 48061-5026, Attn: Edric R. Mason, Jr. Such notice, demand
or other communication to or upon the Trust or the Trustees shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the applicable Trustee.
Section 10.09 Agreement Not to Petition. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, reorganization, arrangement, insolvency, liquidation or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer with
the bankruptcy court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take such action and
should be stopped and precluded therefrom and such other defenses, if any, as
counsel for
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the Trustees or the Trust may assert. The provisions of this Section 10.09 shall
survive the termination of this Trust Agreement.
Section 10.10 Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE TRUST GUARANTEE AND THE
SUBORDINATED DEBENTURE INDENTURE AND THIS TRUST AGREEMENT, AND PROVIDE NOTICE TO
SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER
AND SUCH OTHERS.
Section 10.11 Successors. This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to both the Trust and the
Trustees, including any successor by operation of law.
IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement or have caused this Trust Agreement to be executed on their behalf,
all as of the day and year first above written.
SEMCO ENERGY, INC.
By:
-------------------------------------------
--------------------------------------
Its
-----------------------------------
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BANK ONE TRUST COMPANY, NA,
as Property Trustee
By:
-------------------------------------------
----------------------------,
Title:
--------------------------------
BANK ONE DELAWARE, INC.,
as Delaware Trustee
By:
-------------------------------------------
J. Michael Banas
Title: Vice President
----------------------------------------------
Sebastian Coppola, as Administrative Trustee
----------------------------------------------
Edric R. Mason, Jr., as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST
OF
SEMCO CAPITAL TRUST II
THIS CERTIFICATE OF TRUST OF SEMCO CAPITAL TRUST II (the "Trust"), is
being duly executed and filed by the undersigned as trustee, to form a business
trust under the Delaware Business Trust Act (12 Del., C. ss. 3801 et seq.) (the
"Act").
1. Name. The name of the business trust to be formed by this
Certificate of Trust is SEMCO Capital Trust II.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware are Bank One Delaware,
Inc., 3 Christina Centre, 201 N. Walnut St., Wilmington,
Delaware 19801
3. Effective Date. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned, has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
BANK ONE DELAWARE, INC., not in its individual
capacity but solely as Trustee of the Trust
By:
-------------------------------------------
Name: J. Michael Banas
Title: Vice President
----------------------------------------------
Sebastian Coppola, as
Administrative Trustee
----------------------------------------------
Edric R. Mason, Jr., as
Administrative Trustee
Exhibit A- Page 1
<PAGE> 55
EXHIBIT B
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is
made as of ___________, between SEMCO Energy, Inc., a Michigan corporation (the
"Corporation"), and SEMCO Capital Trust II, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue its Trust Common Securities (the
"Trust Common Securities") to the Corporation and to issue and sell SEMCO
Capital Trust II ____ % Trust Preferred Securities (the "Trust Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Trust dated
as of _______, 1999 as the same may be amended from time to time (the "Trust
Agreement") and acquire Series ____% Subordinated Debentures due _________ (the
"Subordinated Debentures") from the Corporation; and
WHEREAS, the Corporation is the issuer of the Subordinated Debentures.
NOW, THEREFORE, in consideration of the purchase by each holder of the
Trust Securities, which purchase the Corporation hereby agrees shall benefit the
Corporation and which purchase the Corporation acknowledges will be made in
reliance upon the execution and delivery of this Agreement, the Corporation and
the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Corporation. Subject to the terms and
conditions hereof, the Corporation hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to holders of any Trust
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Trust Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and be
of no further force and effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be effective
or shall be reinstated, as the case may be, if at any time any holder of Trust
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Trust Preferred Securities, under any Obligation, under the Trust
Guarantee Agreement dated the date hereof by the Corporation and Bank One Trust
Company, NA, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Exhibit B- Page 1
<PAGE> 56
Section 1.03. Waiver of Notice. The Corporation hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Corporation hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 1.04. No Impairment. The obligations, covenants, agreements and
duties of the Corporation under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of the assets of
the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, the Corporation with respect to the happening of any of
the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
directly against the Corporation and the Corporation waives any right or remedy
to require that any action be brought against the Trust or any other person or
entity before proceeding against the Corporation.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements contained
in this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there remains any Beneficiary or
any Trust Preferred Securities are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Trust Preferred Securities.
Section 2.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), or by registered or certified mail, addressed as follows
(and if so given, shall be deemed given when mailed), to-wit:
Exhibit B- Page 2
<PAGE> 57
SEMCO Capital Trust II
c/o SEMCO Energy, Inc.
405 Water Street
Port Huron, Michigan 48061-5026
Facsimile No.: (810) 989-4098
Attention: Edric R. Mason, Jr.
SEMCO Energy, Inc.
405 Water Street
Port Huron, Michigan 48061-5026
Facsimile No.: (810) 989-4098
Attention: Sherry L. Abbott
Section 2.04. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN.
THIS AGREEMENT is executed as of the date and year first above written.
SEMCO ENERGY, INC.
By:
----------------------------------------------
Name:
Title:
-----------------------------------------
SEMCO CAPITAL TRUST II
By:
----------------------------------------------
Sebastian Coppola, as Administrative Trustee
By:
----------------------------------------------
Edric R. Mason, Jr., as Administrative Trustee
Exhibit B- Page 3
<PAGE> 58
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS PROVIDED IN THE TRUST
AGREEMENT REFERRED TO HEREIN
Certificate Number Number of Trust Common Securities
C-1 --------------------
Certificate Evidencing Trust Common Securities
of
SEMCO Capital Trust II
Trust Common Securities
(Liquidation Amount $25 per Trust Common Security)
SEMCO Capital Trust II, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that SEMCO Energy,
Inc., (the "Holder") is the registered owner of ______ Trust Common Securities
of the Trust representing undivided beneficial interests in the assets of the
Trust and designated the Trust Common Securities (Liquidation Amount $25 per
Trust Common Security) (the "Trust Common Securities"). In accordance with
Section 5.10 of the Trust Agreement (as defined below) the Trust Common
Securities are not transferable, except by operation of law or to an Affiliate
of the Holder or a permitted successor under Section 801 of the Subordinated
Debenture Indenture, dated as of ____________, 1999, between the Holder and
_________________, as trustee, and any attempted transfer hereof shall be void.
The designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Trust Common Securities are set forth in, and this
certificate and the Trust Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of _________, as the same may be
amended from time to time (the "Trust Agreement"), including the designation of
the terms of the Trust Common Securities as set forth therein. The Trust will
furnish a copy of the Trust Agreement to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Exhibit C- Page 1
<PAGE> 59
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this _____day of _______, ____.
SEMCO Capital Trust II
By:
---------------------------------------------
Sebastian Coppola
as Administrative Trustee
By:
---------------------------------------------
Edric R. Mason, Jr.,
as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Trust Common Securities referred to in the within
mentioned Trust Agreement.
------------------------------------------------
Sebastian Coppola, as Administrative Trustee
Exhibit C- Page 2
<PAGE> 60
EXHIBIT D
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to SEMCO Capital
Trust II 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
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), any transfer, pledge, or other use hereof for value or
otherwise by or to any person is wrongful inasmuch as the registered owner
thereof, Cede & Co., has an interest herein.
Certificate Number Number of Trust Preferred Securities
P- CUSIP NO.
Certificate Evidencing Trust Preferred Securities
of
SEMCO Capital Trust II
_____ % Trust Preferred Securities
(Liquidation Amount $25 per Trust Preferred Security)
SEMCO Capital Trust II, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of ______ Trust Preferred
Securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the SEMCO Capital Trust II ____ % Trust
Preferred Securities (Liquidation Amount $25 per Trust Preferred Security) (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 5.04 of the Trust 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 _________, 1999,
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 holder of this certificate is entitled to the benefits of a guarantee by
SEMCO Energy, Inc., a Michigan corporation (the "Corporation"), pursuant to a
Trust Guarantee Agreement between the Corporation and Bank One Trust Company,
NA, as guarantee trustee, dated as of _________, 1999, as the same may be
amended from time to time (the "Trust Guarantee"), to the extent provided
therein. The Trust will furnish a copy of the Trust Agreement and the Trust
Guarantee to the holder of this certificate without charge upon written request
to the Trust at its principal place of business or registered office.
Exhibit D- Page 1
<PAGE> 61
Upon receipt of this certificate, the holder of this certificate is
bound by the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this _____ day of _________, ____.
SEMCO CAPITAL TRUST II
By:
----------------------------------------------
Sebastian Coppola, as Administrative Trustee
By:
----------------------------------------------
Edric R. Mason, Jr., as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to in the within
mentioned Trust Agreement.
-------------------------------------------------
Sebastian Coppola, as Administrative Trustee
Exhibit D- Page 2
<PAGE> 62
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 Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
------------------------------
Signature:
-------------------------
(Sign exactly as your name appears on the other side of this Trust Preferred
Security Certificate)
Exhibit D- Page 3
<PAGE> 1
EXHIBIT 4.13
FORM OF AMENDED & RESTATED TRUST AGREEMENT
SEMCO CAPITAL TRUST III
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
SEMCO ENERGY, INC., AS DEPOSITOR,
BANK ONE TRUST COMPANY, NA, AS PROPERTY TRUSTEE
BANK ONE DELAWARE, INC., AS DELAWARE TRUSTEE
AND
SEBASTIAN COPPOLA AND EDRIC R. MASON, JR.,
AS ADMINISTRATIVE TRUSTEES
DATED AS OF
----------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I Defined Terms........................................................................
Section 1.01 Definitions....................................................................
ARTICLE II Establishment of the Trust...........................................................
Section 2.01 Name...........................................................................
Section 2.02 Offices of the Trustees; Principal Place of Business...........................
Section 2.03 Initial Contribution of Trust Property; Organizational
Expenses.......................................................................
Section 2.04 Issuance of the Trust Preferred Securities.....................................
Section 2.05 Subscription and Purchase of Subordinated Debentures;
Issuance of the Trust Common Securities........................................
Section 2.06 Declaration of Trust...........................................................
Section 2.07 Authorization to Enter into Certain Transactions...............................
Section 2.08 Assets of Trust................................................................
Section 2.09 Title to Trust Property........................................................
Section 2.10 Mergers and Consolidations of the Trust........................................
ARTICLE III Payment Account......................................................................
Section 3.01 Payment Account................................................................
ARTICLE IV Distributions; Redemption............................................................
Section 4.01 Distributions .................................................................
Section 4.02 Redemption.....................................................................
Section 4.03 Subordination of Trust Common Securities.......................................
Section 4.04 Payment Procedures.............................................................
Section 4.05 Tax Returns and Reports........................................................
ARTICLE V Trust Securities Certificates .......................................................
Section 5.01 Initial Ownership..............................................................
Section 5.02 The Trust Securities Certificates..............................................
Section 5.03 Authentication of Trust Securities Certificates................................
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates........................................................
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates...................................................................
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
Section 5.06 Persons Deemed Securityholders.................................................
Section 5.07 Access to List of Securityholders' Names and Addresses.........................
Section 5.08 Maintenance of Office or Agency................................................
Section 5.09 Appointment of Paying Agent....................................................
Section 5.10 Ownership of Trust Common Securities by Depositor..............................
Section 5.11 Book-Entry Trust Preferred Securities Certificates; Common
Securities Certificate.........................................................
Section 5.12 Notices to Clearing Agency.....................................................
Section 5.13 Definitive Trust Preferred Securities Certificates.............................
Section 5.14 Rights of Securityholders......................................................
ARTICLE VI Acts of Securityholders; Meetings; Voting............................................
Section 6.01 Limitations on Voting Rights...................................................
Section 6.02 Notice of Meetings.............................................................
Section 6.03 Meetings of Trust Preferred Securityholders....................................
Section 6.04 Voting Rights..................................................................
Section 6.05 Proxies, etc...................................................................
Section 6.06 Securityholder Action by Written Consent.......................................
Section 6.07 Record Date for Voting and Other Purposes......................................
Section 6.08 Acts of Securityholders........................................................
Section 6.09 Inspection of Records..........................................................
ARTICLE VII Representations and Warranties of the Property Trustee
and Delaware Trustee...........................................................
Section 7.01 Representations and Warranties of the Property Trustee
and Delaware Trustee...........................................................
Section 7.02 Representations and Warranties of Depositor ...................................
ARTICLE VIII The Trustees.........................................................................
Section 8.01 Certain Duties and Responsibilities............................................
Section 8.02 Notice of Defaults.............................................................
Section 8.03 Certain Rights of Property Trustee.............................................
Section 8.04 Not Responsible for Recitals or Issuance of Securities.........................
Section 8.05 Trustee May Hold Securities....................................................
Section 8.06 Compensation; Fees; Indemnity..................................................
Section 8.07 Trustees Required; Eligibility.................................................
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
Section 8.08 Conflicting Interests..........................................................
Section 8.09 Co-Property Trustees and Separate Trustee......................................
Section 8.10 Resignation and Removal; Appointment of Successor..............................
Section 8.11 Acceptance of Appointment by Successor.........................................
Section 8.12 Merger, Conversion, Consolidation or Succession
to Business....................................................................
Section 8.13 Preferential Collection of Claims Against Depositor
or Trust.......................................................................
Section 8.14 Reports by Property Trustee....................................................
Section 8.15 Reports to the Property Trustee................................................
Section 8.16 Evidence of Compliance with Conditions Precedent...............................
Section 8.17 Number of Trustees.............................................................
Section 8.18 Delegation of Power............................................................
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders................................................................
ARTICLE IX Termination and Liquidation..........................................................
Section 9.01 Termination Upon Expiration Date...............................................
Section 9.02 Early Termination..............................................................
Section 9.03 Termination....................................................................
Section 9.04 Liquidation....................................................................
Section 9.05 Bankruptcy.....................................................................
ARTICLE X Miscellaneous Provisions.............................................................
Section 10.01 Guarantee by the Depositor.....................................................
Section 10.02 Limitation of Rights of Securityholders........................................
Section 10.03 Amendment......................................................................
Section 10.04 Separability...................................................................
Section 10.05 Governing Law..................................................................
Section 10.06 Notice of Deferral of Distribution.............................................
Section 10.07 Headings.......................................................................
Section 10.08 Notice and Demand..............................................................
Section 10.09 Agreement Not to Petition......................................................
Section 10.10 Conflict with Trust Indenture Act..............................................
Section 10.11 Successors.....................................................................
</TABLE>
<PAGE> 5
EXHIBIT A - Certificate of Trust
EXHIBIT B - Form of Expense Agreement
EXHIBIT C - Form of Trust Common Securities Certificate
EXHIBIT D - Form of Trust Preferred Securities Certificate
<PAGE> 6
SEMCO CAPITAL TRUST III
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Act Trust Agreement
Section Section
- ------- -------
<S> <C>
Section 310(a)(1).................................... 8.07
(a)(2).......................................... 8.07
(a)(3).......................................... 8.09
(a)(4).......................................... Not Applicable
(b)............................................. 8.08
Section 311(a)....................................... 8.13
(b)............................................. 8.13
Section 312(a)....................................... 5.07
(b)............................................. 5.07
(c)............................................. 5.07
Section 313(a)....................................... 8.14
(a)(4).......................................... 8.14(b)
(b)............................................. 8.14(b)
(c)............................................. 8.14(c)
(d)............................................. 8.14(b), 8.14(c)
Section 3.14(a)...................................... 8.15
(b)............................................. Not Applicable
(c)(1).......................................... 8.15, 8.16
(c)(2).......................................... 8.16
(c)(3).......................................... 8.16
(d)............................................. Not Applicable
(e)............................................. 8.16
Section 315(a)....................................... 8.01
(b)............................................. 8.02, 8.14(b)
(c)............................................. 8.01(a)
(d)............................................. 8.01, 8.03
(e)............................................. Not Applicable
Section 316(a)....................................... Not Applicable
(a)(1)(A)....................................... 8.19
(a)(1)(B)....................................... 8.19
(a)(2).......................................... Not Applicable
(b)............................................. Not Applicable
(c)............................................. Not Applicable
Section 317(a)(1).................................... Not Applicable
(a)(2).......................................... Not Applicable
(b)............................................. 5.09
Section 318(a)....................................... 10.10
</TABLE>
Note: This Cross-Reference Table does not constitute part of the Trust
Agreement and shall not affect the interpretation of any of its terms and
provisions.
<PAGE> 7
AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of ____________,
1999 by and among (i) SEMCO Energy, Inc., a Michigan corporation (the
"Depositor" or the "Corporation"), (ii) Bank One Trust Company, NA, a national
banking association, as trustee (the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) Bank One Delaware, Inc., a corporation duly organized under the laws of
the State of Delaware, as Delaware trustee (the "Delaware Trustee" and in its
separate corporate and not in its capacity as Delaware Trustee, the "Delaware
Corporation"), (iv) Sebastian Coppola, an individual, and Edric R. Mason, Jr.,
an individual, as administrative trustees (each an "Administrative Trustee" and
together the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH:
WHEREAS, the Depositor and certain of the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the execution and filing with the Secretary of State of the State
of Delaware of the Certificate of Trust, dated __________ ___, 1999 (the
"Certificate of Trust") and by the entering into that certain Trust Agreement,
dated as of _______ ___, 1999 (the "Original Trust Agreement"), and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the addition of the Bank, as trustee of the Trust, (ii) the
acquisition by the Trust from the Depositor of all of the right, title and
interest in certain subordinated debentures of the Depositor, (iii) the issuance
of the Trust Common Securities by the Trust to the Depositor, and (iv) the
issuance and sale of the Trust Preferred Securities by the Trust pursuant to the
Underwriting Agreement.
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:
1
<PAGE> 8
ARTICLE I
DEFINED TERMS
Section 1.01 Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, an amount equal to the Additional
Interest (as defined in clause (ii) of the definition of "Additional Interest"
in the Subordinated Debenture Indenture) paid by the Depositor on a Like Amount
of Subordinated Debentures for such period.
"Administrative Trustee" means each of the individuals identified as an
"Administrative Trustee" in the preamble to this Trust Agreement solely in their
capacities as Administrative Trustees of the Trust formed and continued
hereunder and except as specifically provided to the contrary herein and not in
their individual capacities, or such trustee's successor(s) in interest in such
capacity, or any successor "Administrative Trustee" appointed as herein
provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, control
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of such Person in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging such
Person a bankrupt or insolvent, or approving as properly filed a petition
2
<PAGE> 9
seeking reorganization, arrangement, adjustment or composition of or in respect
of such Person under any applicable federal or state law, or appointing a
custodian, 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 for relief or any such other decree or order unstayed
and in effect for a period of 90 consecutive days; or
(ii) the commencement by such Person of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of such Person in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Corporation 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, or the authorization of any such action by the
board of directors of such Person.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Beneficiaries" has the meaning specified in Section 10.01.
"Board Resolution" means a resolution or a copy thereof certified by
the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors or a duly authorized committee
thereof and to be in full force and effect on the date of such certification,
and delivered to the Trustees.
"Book-Entry Trust Preferred Securities Certificates" means certificates
representing Trust Preferred Securities issued in global, fully registered form
to the Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii)
a day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office or the Indenture Trustee's principal corporate trust office is closed for
business.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. 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 which from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency pursuant to the rules of such Clearing Agency or an agreement
between the Clearing Agency and such Person in the customary form.
3
<PAGE> 10
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act then the body
performing such duties at such time.
"Corporate Trust Office" means the office of the Property Trustee
located in Detroit, Michigan at which its corporate trust business shall be
principally administered.
"Corporation" means SEMCO Energy, Inc., its successors and assigns.
"Debenture Indenture Event of Default" means an "Event of Default" as
defined in the Subordinated Debenture Indenture with respect to the Subordinated
Debentures.
"Debenture Indenture Redemption Date" means "Redemption Date", as
defined in the Subordinated Debenture Indenture.
"Definitive Trust Preferred Securities Certificates" means either or
both (as the context requires) of (i) Trust Preferred Securities Certificates
issued in certificated, fully registered form as provided in Section 5.11(a) and
(ii) Trust Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time.
"Delaware Corporation" means Bank One Delaware, Inc. in its
separate corporate capacity.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" and has the meaning specified in the preamble to this Trust Agreement
solely in its capacity as Delaware Trustee of the Trust formed and continued
hereunder and except as specifically provided to the contrary herein, not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware Trustee appointed as herein provided.
"Depositor" means SEMCO Energy, Inc., in its capacity as "Depositor"
under this Trust Agreement, its successors and assigns.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section 9.02.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of
4
<PAGE> 11
law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(i) the occurrence of a Debenture Indenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of 30
days; or
(iii) default by the Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, of any covenant or
warranty of the Trustees in this Trust Agreement (other than a covenant or
warranty a default in whose performance or breach is dealt with in clause (ii)
or (iii) above) and continuation of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Trustees by the Holders of at least 25% in Liquidation Amount of the Outstanding
Trust Preferred Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect to the Trust.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Corporation and the Trust, substantially in the form attached as
Exhibit B, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation, with a similar purpose and
effect.
"Extension Period" has the meaning specified in Section 4.01(b).
"Indenture Trustee" means the trustee under the Subordinated Debenture
Indenture.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Issue Date" means the date of the original issuance and delivery of
the Trust Securities by the Administrative Trustees.
"Legal Action" has the meaning specified in Section 2.07(A)(iv).
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation Amount
equal to the principal amount of Subordinated Debentures to be contemporaneously
redeemed in
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accordance with the Subordinated Debenture Indenture and the proceeds of which
will be used to pay the Redemption Price of such Trust Securities and (ii)
Subordinated Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Subordinated
Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Subordinated Debentures are
to be distributed to Holders of Trust Securities in connection with a
liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in Section 9.05.
"Obligations" has the meaning specified in Section 10.01.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Depositor, and
delivered to the appropriate Trustee. One of the officers signing an Officers'
Certificate to be delivered by the Depositor pursuant to Section 8.16 shall be
the principal executive, financial or accounting officer of the Depositor. An
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 such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in the Officers'
Certificate are based;
(c) a statement that, in the opinion of each such officer, he has made
such examination or investigation as is necessary to enable him 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.
"OID" means "original issue discount" as that term or any substantially
similar subsequent term is defined in the Internal Revenue Code of 1986, as
amended.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Trustees or the Depositor, but not an employee of the
Trust or the Trustees, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel pertaining to federal income tax matters may
rely on published rulings of the Internal Revenue Service.
"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 authenticated and delivered under this Trust Agreement, except:
(i) Trust Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the Administrative Trustees for
cancellation;
(ii) 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 or provision
therefor satisfactory to the Property Trustee has been made; and
(iii) Trust Preferred Securities in exchange for or in lieu of which
other Trust Preferred Securities have been authenticated and delivered pursuant
to this Trust Agreement; 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, whether of record
or beneficially, by the Depositor, the Holder of the Trust Common Securities,
any Administrative Trustee or any Affiliate of the Depositor or any
Administrative 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 which such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at any time when
all of the outstanding Trust Preferred Securities are owned by the Depositor,
the Holder of the Trust Common Securities, one or more Administrative 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 Administrative Trustees 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 5.09 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account established pursuant to Section 3.01 and maintained by the
Property Trustee for the benefit of the Securityholders in which all amounts
paid in respect of the Subordinated Debentures will be held and from which the
Property Trustee shall make payments to the Securityholders in accordance with
Section 4.01.
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"Person" means an individual, corporation, partnership, joint venture,
trust, estate, 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 formed and continued
hereunder and except as specifically provided to the contrary herein not in its
individual capacity, or its successor in interest in such capacity, or any
successor "Property Trustee" as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Indenture Redemption Date shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for redemption
of any Trust Security, the Liquidation Amount of such Trust Security, plus
accrued and unpaid Distributions to such date.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation with a similar purpose and effect.
"Security Register" and "Security Registrar" are described in Section
5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security is or Securities are registered in the Security Register; any such
Person is a beneficial owner within the meaning of the Delaware Business Trust
Act.
"Subordinated Debentures" means the $_________ aggregate principal
amount of the Depositor's Series _____ % Subordinated Debentures due _____,
_____ issued pursuant to the Subordinated Debenture Indenture.
"Subordinated Debenture Indenture" means the Subordinated Debenture
Indenture, dated as of ______________, between the Depositor and the Indenture
Trustee, as supplemented by the Supplemental Indenture.
"Successor Securities" has the meaning specified in Section 2.10.
"Supplemental Indenture" means the Indenture, dated as of
_________________, by and between the Depositor and the Indenture Trustee for
the purpose of supplementing the Subordinated Debenture Indenture entered into
in connection with the Subordinated Debentures.
"Trust" means the Delaware business trust continued hereby and
identified on the cover page to this Trust Agreement.
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"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 an
purposes of this Amended and Restated Trust Agreement and any modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust Agreement and
any such modification, amendment or supplement, respectively.
"Trust Common Securities Certificate" means a certificate evidencing
ownership of a Trust Common Security or Securities, substantially in the form
attached as Exhibit C.
"Trust Common Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount of $25 and
having the rights provided therefor in this Trust Agreement, including the right
to receive Distributions and a Liquidation Distribution as provided herein.
"Trustees" means the Persons identified as "Trustees" in the preamble
to this Trust Agreement solely in their capacities as Trustees of the Trust
formed hereunder and except as specifically provided to the contrary herein not
in their individual capacities, or any successor in interest in such capacity,
or any successor trustee appointed as herein provided.
"Trust Guarantee" means the Trust Guarantee Agreement executed and
delivered by the Corporation and Bank One Trust Company, NA, as Guarantee
Trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Trust Preferred Securities, as
amended from time to time.
"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 a Trust Preferred Security or Securities, substantially in the form
attached as Exhibit D.
"Trust Preferred Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount of $25 and
having rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Trust Property" means (i) the Subordinated Debentures, (ii) any cash
on deposit in, or amounts owing to, the Payment Account, and (iii) all proceeds
and rights in respect of the foregoing and any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to this
Trust Agreement.
"Trust Securities Certificate" means any one of the Trust Common
Securities Certificates or the Trust Preferred Securities Certificates.
"Trust Security" means any one of the Trust Common Securities or the
Trust Preferred Securities.
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"Underwriting Agreement" means the Underwriting Agreement, dated as of
___________________ among the Trust, the Depositor and the underwriters named
therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.01 Name. The Trust continued hereby shall be known as "SEMCO
Capital Trust III" in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued. The Administrative Trustees may change the name of the
Trust from time to time following written notice to the Holders.
Section 2.02 Offices of the Trustees; Principal Place of Business. The
address of the Property Trustee is Bank One Trust Company, NA, Corporate Trust
Administration, 11th Floor - Suite 8110, 611 Woodward Avenue, Detroit, Michigan
48226, or at such other address as the Property Trustee may designate by written
notice to the Securityholders and the Depositor. The principal place of business
of the Delaware Trustee is Bank One Delaware, Inc., 3 Christina Centre, 201
N. Walnut St., Wilmington, Delaware 19801, or at such other address in Delaware
as the Delaware Trustee may designate by notice to the Depositor. The address of
the Administrative Trustees is c/o SEMCO Energy, Inc., 405 Water Street, P.O.
Box 5026, Port Huron, Michigan 48061-5026, Attention: Edric R. Mason, Jr. The
principal place of business of the Trust is c/o SEMCO Energy, Inc., 405 Water
Street, P.O. Box 5026, Port Huron, Michigan 48061-5026. The Depositor may change
the principal place of business of the Trust at any time by giving notice
thereof to the Trustees.
Section 2.03 Initial Contribution of Trust Property; Organizational
Expenses. The Trustees acknowledge 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 the Trustees,
promptly reimburse the Trustees for any such expenses paid by the Trustees. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.04 Issuance of the Trust Preferred Securities.
Contemporaneously with the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall execute 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, in an aggregate amount of Trust Preferred Securities having an aggregate
Liquidation Amount of $_________ (the "Trust Preferred Securities") against
receipt of the aggregate purchase price of such Trust Preferred Securities of
$__________, which amount the Administrative Trustees shall promptly deliver to
the Property Trustee.
Section 2.05 Subscription and Purchase of Subordinated Debentures;
Issuance of the Trust Common Securities. Contemporaneously with the execution
and delivery of this Trust Agreement, the Administrative Trustees, on behalf of
the Trust, shall execute and deliver to the Depositor Trust Common Securities
Certificates, registered in the name of the Depositor, in an
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aggregate amount of Trust Common Securities having an aggregate Liquidation
Amount of $__________ against payment by the Depositor of such amount.
Contemporaneously therewith, the Administrative Trustees, on behalf of the
Trust, shall subscribe to and purchase from the Depositor Subordinated
Debentures, registered in the name of the Property Trustee, on behalf of the
Trust and the Holders, and having an aggregate principal amount equal to
$___________ and, in satisfaction of the purchase price for such Subordinated
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $___________.
Section 2.06 Declaration of Trust. The exclusive purposes and functions
of the Trust are (i) to issue and sell the Trust Securities, (ii) to use the
proceeds from such sale to acquire the Subordinated Debentures, and (iii) to
engage in only those other activities necessary, appropriate, convenient or
incidental thereto. The Depositor hereby appoints each of the Bank, the Delaware
Trustee, Sebastian Coppola, and Edric R. Mason, Jr., as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth herein. The
Property Trustee hereby declares that it will hold the Trust Property upon and
subject to the conditions set forth herein subject to the conditions set forth
herein for the benefit of the Trust and the Securityholders. The Trustees shall
have all rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes of the Trust. Except
as may be required under the Delaware Business Trust Act, the Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of any other Trustee set forth
herein. The Delaware Trustee shall be one of the Trustees for the sole and
limited purpose of fulfilling the requirements of Section 3807(a) of the
Delaware Business Trust Act. The Delaware Trustee, as the trustee under the
Original Trust Agreement, has filed the Certificate of Trust of the Trust with
the office of the Secretary of State of the State of Delaware, a copy of which
is attached hereto as Exhibit A, and such filing is hereby confirmed and
ratified.
Section 2.07 Authorization to Enter into Certain Transactions. The
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Trust Agreement. Subject to the limitations set forth in paragraph (C) of
this Section, and in accordance with the following paragraphs (A) and (B), the
Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express (in the case of the Property Trustee) or implied, otherwise granted to
the Trustees under this Trust Agreement, and to perform all acts in furtherance
thereof, including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees, acting singly
or jointly, shall have the exclusive power, duty and authority to act on behalf
of the Trust with respect to the following matters:
(i) to acquire the Subordinated Debentures with the proceeds of the
sale of the Trust Securities; provided, however, the Administrative Trustees
shall cause legal title to all of the Subordinated Debentures to be vested in,
and the Subordinated Debentures to be held of record in the name of, the
Property Trustee for the benefit of the Trust and the Holders of the Trust
Securities;
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(ii) to deliver to the Depositor and the Property Trustee prompt
written notice of the occurrence of any Special Event (as defined in the
Supplemental Indenture) and to take any ministerial actions in connection
therewith; provided that the Administrative Trustees shall consult with the
Depositor and the Property Trustee before taking or refraining to take any
ministerial action in relation to a Special Event;
(iii) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including for the
purposes of Section 316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions, and exchanges, and to issue relevant
notices to Holders of the Trust Securities as to such actions and applicable
record dates;
(iv) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 2.07(B)(v), the Property Trustee
has the power to bring such Legal Action;
(v) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(vi) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(vii) to give the certificate to the Property Trustee required by
Section 314(a)(4) of the Trust Indenture Act, which certificate may be executed
by any Administrative Trustee;
(viii) to take all actions and perform such duties as may be required
of the Administrative Trustees pursuant to the terms of this Trust Agreement;
(ix) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Trust
Securities or to enable the Trust to effect the purposes for which the Trust has
been created;
(x) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Administrative Trustees, on
behalf of the Trust;
(xi) to issue and sell the Trust Securities;
(xii) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Expense Agreement and such other agreements
as may be necessary or desirable in connection with the consummation hereof;
(xiii) to assist in the registration of the Trust Preferred Securities
under the Securities Act and under state securities or blue sky laws, and the
qualification of the Trust Agreement as a trust indenture under the Trust
Indenture Act;
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(xiv) to assist in the listing of the Trust Preferred Securities upon
the NASDAQ National Market and such securities exchange or exchanges as shall be
determined by the Depositor and, if required, the registration of the Trust
Preferred Securities under the Exchange Act, and the preparation and filing of
all periodic and other reports and other documents pursuant to the foregoing;
(xv) to send notices (other than notices of default) and other
information regarding the Trust Securities and the Subordinated Debentures to
the Securityholders in accordance with this Trust Agreement;
(xvi) to appoint a Paying Agent (subject to Section 5.09),
authenticating agent and Security Registrar in accordance with this Trust
Agreement;
(xvii) to register transfers of the Trust Securities in accordance
with this Trust Agreement;
(xviii) to assist in the winding up of the affairs of and termination
of the Trust as provided in this Trust Agreement; and
(xix) to take any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
(B) As among the Trustees, the Property Trustee shall have the
exclusive power, duty and authority to act on behalf of the Trust with respect
to the following matters:
(i) engage in such ministerial activities as shall be necessary or
appropriate to effect promptly the redemption of the Trust Securities to the
extent the Subordinated Debentures are redeemed or mature;
(ii) upon notice of distribution issued by the Administrative
Trustees in accordance with the terms of this Trust Agreement, engage in such
ministerial activities as shall be necessary or appropriate to effect promptly
the distribution pursuant to the terms of this Trust Agreement of Subordinated
Debentures to Holders of Trust Securities;
(iii) subject to the terms hereof, exercise all of the rights, powers
and privileges of a holder of the Subordinated Debentures under the Subordinated
Debenture Indenture and, if an Event of Default occurs and is continuing,
enforce for the benefit of, and subject to the rights of, the Holders of the
Trust Securities, its rights as holder of the Subordinated Debentures under the
Subordinated Debenture Indenture;
(iv) take all actions and perform such duties as may be specifically
required of the Property Trustee pursuant to the terms of this Trust Agreement;
(v) take any Legal Action which arises out of or in connection with
an Event of Default or the Property Trustee's duties and obligations under this
Trust Agreement, the Delaware Business Trust Act or the Trust Indenture Act;
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(vi) the establishment and maintenance of the Payment Account;
(vii) the receipt of and holding of legal title to the Subordinated
Debentures as described herein;
(viii) the collection of interest, principal and any other payments
made in respect of the Subordinated Debentures in the Payment Account;
(ix) the distribution of amounts received in the Payment Account and
owed to the Securityholders in respect of the Trust Securities;
(x) the sending of notices of default and other information
regarding the Trust Securities and the Subordinated Debentures to the
Securityholders in accordance with this Trust Agreement;
(xi) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(xii) the winding up of the affairs of and termination of the Trust
as provided in this Trust Agreement, and the preparation, execution and filing
of the certificate of cancellation with the Secretary of State of the State of
Delaware; and
(xiii) the taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary, appropriate,
convenient or advisable to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the effect of any such
action on any particular Securityholder).
(C) So long as this Trust Agreement remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activity or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees acting on behalf of the Trust
shall not (i) acquire any investments or engage in any activities not authorized
by this Trust Agreement, (ii) sell, assign, transfer, exchange, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify as a grantor
trust for United States federal income tax purposes, (iv) incur any indebtedness
for borrowed money, (v) take or consent to any action that would result in the
placement of a Lien on any of the Trust Property, (vi) issue any securities
other than the Trust Securities, or (vii) have any power to, or agree to any
action by the Depositor that would, vary the investment (within the meaning of
Treasury Regulation Section 301.7701-4(c)) of the Trust or of the
Securityholders. The Trustees shall defend all claims and demands of all Persons
at any time claiming any Lien on any of the Trust Property adverse to the
interest of the Trust or the Securityholders in their capacity as
Securityholders.
(D) In connection with the issue and sale of the Trust Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
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(i) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 under the Securities Act in relation to the
Trust Preferred Securities, including any amendments thereto;
(ii) to determine the states in which to take appropriate action to
qualify or register for sale all or part of the Trust Preferred Securities and
to do any and all such acts, other than actions which must be taken by or on
behalf of the Trust, and advise the Trustees of actions they must take on behalf
of the Trust, and prepare for execution and filing any documents to be executed
and filed by the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of any such
states;
(iii) to prepare for filing by the Trust an application to any other
national stock exchange or the NASDAQ National Market for listing upon notice of
issuance of any Trust Preferred Securities;
(iv) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the Trust
Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto;
(v) to negotiate the terms of the Underwriting Agreement providing
for the sale of the Trust Preferred Securities and to execute, deliver and
perform the Underwriting Agreement on behalf of the Trust;
(vi) to negotiate the terms of an agreement with the Depository
Trust Company relating to the Trust Preferred Securities and to execute, deliver
and perform the agreement on behalf of the Trust; and
(vii) any other actions necessary, incidental, appropriate or
convenient to carry out any of the foregoing activities.
(E) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act,
or taxed as other than a grantor trust for United States federal income tax
purposes and so that the Subordinated Debentures will be treated as indebtedness
of the Depositor for United States federal income tax purposes. In this
connection, the Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate of Trust or
this Trust Agreement, that each of the Depositor and the Administrative Trustees
determines in its discretion to be necessary or desirable for such purposes, as
long as such action does not materially and adversely affect the interests of
the Holders of the Trust Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust shall consist of
the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Securityholders and the Trust in accordance with this Trust Agreement. The
right, title and interest of the Property Trustee to the Subordinated
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Debentures shall vest automatically in each Person who may thereafter be
appointed as Property Trustee in accordance with the terms hereof. Such vesting
and cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered.
Section 2.10 Mergers and Consolidations of the Trust. The Trust shall
not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to any
corporation or other entity, except as described below. The Trust may at the
request of the Corporation, with the consent of the Administrative Trustees and,
unless an Event of Default shall have occurred and be continuing, without the
consent of the Holders, the Property Trustee or the Delaware Trustee,
consolidate, amalgamate, merge with or into, or be replaced by a trust organized
as such under the laws of any state; provided that (i) such successor entity
either (x) expressly assumes all of the obligations of the Trust with respect to
the Trust Securities or (y) substitutes for the Trust Securities other
securities having substantially the same terms as the Trust Securities (herein
referred to as the "Successor Securities") so long as the Successor Securities
rank the same as the Trust Securities rank in priority with respect to
Distributions and payments upon liquidation, redemption and otherwise, (ii) the
Corporation expressly appoints a trustee of such successor entity possessing
substantially the same powers and duties as the Property Trustee as the holder
of legal title to the Subordinated Debentures, (iii) the Trust Preferred
Securities or any Successor Securities are listed, or any Successor Securities
will be listed upon notification of issuance, on any national securities
exchange or other organization on which the Trust Preferred Securities are then
listed, (iv) such merger, consolidation, amalgamation or replacement does not
cause the Trust Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such consolidation, amalgamation, merger or replacement does not adversely
affect the rights, preferences and privileges of the Holders of the Trust
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 consolidation, amalgamation, merger or replacement,
the Corporation and the Property Trustee have received an Opinion of Counsel
experienced in such matters to the effect that (A) such consolidation,
amalgamation, merger or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Securities (including any
Successor Securities) in any material respect, and (B) following such
consolidation, amalgamation, merger or replacement, neither the Trust nor such
successor entity will be required to register as an investment company under the
Investment Company Act, and (viii) the Corporation owns all of the common
securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Trust Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of 100% in Liquidation Amount of the Trust
Securities, consolidate, amalgamate, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or the successor entity to be classified as
other than a grantor trust for United States federal income tax purposes.
ARTICLE III
PAYMENT ACCOUNT
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Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and an agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the 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 principal or interest on, and any other payments
or proceeds with respect to, the Subordinated Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 4.01 Distributions.
(a) Distributions on the Trust Securities shall be cumulative and
accrue from the Issue Date and, except in the event that the Depositor exercises
its right to extend the interest payment period for the Subordinated Debentures
pursuant to Section 104 of the Supplemental Indenture, shall be payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing on __________, ____. If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed at a
rate of _____% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any full quarterly period shall be computed
on the basis of twelve 30-day months and a 360-day year. If the interest payment
period for the Subordinated Debentures is extended pursuant to Section 104 of
the Supplemental Indenture (an "Extension Period"), then the rate per annum at
which Distributions on the Trust Securities accumulate shall be increased by an
amount such that the aggregate amount of Distributions that accumulate on all
Trust Securities during any such Extension Period is equal to the aggregate
amount of interest (including interest payable on unpaid interest at the
percentage rate per annum set forth above, compounded quarterly, to the extent
permitted by applicable law) that accrues during any such Extension Period on
the Subordinated Debentures. The payment of such deferred interest, together
with interest thereon, will be distributed, if and to the extent funds are
legally available
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therefor, to the Holders of the Trust Securities (as they appear on the books
and records of the Trust on the Record Date next following the termination of
such Extension Period) as received at the end of any Extension Period. The
amount of Distributions payable for any period shall include the Additional
Amounts, if any.
(c) Distributions on the Trust Securities shall be made and shall
be deemed payable on each Distribution Date only to the extent that the Trust
has legally and immediately available funds in the Payment Account for the
payment of such Distributions.
(d) Distributions (including Additional Amounts, if any) on the
Trust Securities on each Distribution Date shall be payable to the Holders
thereof as they appear on the Security Register for the Trust Securities on the
relevant record date, which shall be the close of business on the fifteenth
calendar day prior to the relevant Distribution Date. Each Trust Security, upon
registration of transfer of or in exchange for or in lieu of any other Trust
Security, shall carry the rights of Distributions accrued (including Additional
Amounts, if any) and unpaid, and to accrue (including Additional Amounts, if
any), which were carried by such other Trust Security.
Section 4.02 Redemption.
(a) On each Redemption Date with respect to the Subordinated
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. Any notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the total Liquidation Amount of the Trust Securities to be redeemed;
and
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and the
Distributions thereon will cease to accrue on and after such date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Subordinated Debentures. Redemptions of the Trust Securities shall
be made and the Redemption Price shall be deemed payable on each Redemption Date
only to the extent that the Trust has funds legally and immediately available in
the Payment Account for the payment of such Redemption Price.
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(d) If the Property Trustee gives a notice of redemption in respect
of any Trust Preferred Securities which notice when given shall become
irrevocable, then, by 2:00 P.M. New York City time, on the Redemption Date,
subject to Section 4.02(c), the Property Trustee will, so long as the Trust
Preferred Securities are in book-entry only form, irrevocably deposit with the
Clearing Agency for the Trust Preferred Securities funds sufficient to pay the
applicable Redemption Price. If the Trust Preferred Securities are not in
book-entry only form, the Property Trustee, subject to Section 4.02(c), shall
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable instructions to pay
the Redemption Price to the Holders thereof upon surrender of their Trust
Preferred Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Security Register for the Trust Securities on the relevant record
dates for the related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then immediately prior to the close
of business on the date of such deposit, all rights of Securityholders holding
Trust Securities so called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price, but without interest, and such
Securities will cease to be outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, payment of such Redemption Price shall be made on the immediately
preceding Business, Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
Trust Securities is improperly withheld or refused and not paid either by the
Trust or by the Depositor pursuant to the Trust Guarantee, Distributions on such
Trust Securities will continue to accrue at the then applicable rate, from such
Redemption Date originally established by the Trust for such Trust Preferred
Securities to the date such Redemption Price is actually paid.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the recordholders thereof as they appear on the Security Register for
the Trust Securities on the relevant record date, which shall be the close of
business on the fifteenth calendar day prior to the Redemption Date.
(f) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated 3% to the Trust Common Securities
and 97% to the Trust Preferred Securities, with such adjustments that each
amount so allocated shall be divisible by $25. The particular Trust Preferred
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding Trust Preferred
Securities not previously called for redemption, by such method as the Property
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to $25 or integral multiples thereof of the
Liquidation Amount of Trust Preferred Securities of a denomination larger than
$25); provided, however, that before undertaking redemption of the Trust
Preferred Securities on other than a pro rata basis, the Property Trustee shall
have received an Opinion of Counsel that the status of the Trust as a grantor
trust for United States federal income tax purposes would not be adversely
affected. The Property
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Trustee shall promptly notify the Security Registrar in writing of the Trust
Preferred Securities selected for redemption and, in the case of any Trust
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of Trust
Preferred Securities shall relate, in the case of any Trust Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Trust Preferred Securities which has been or is to be redeemed.
(g) Subject to the foregoing provisions of this Section 4.02 and to
applicable law (including, without limitation, United States federal securities
laws), the Corporation or its Affiliates may, at any time and from time to time,
purchase outstanding Trust Preferred Securities by tender, in the open market or
by private agreement.
Section 4.03 Subordination of Trust Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made pro rata based on the respective Liquidation Amounts
of the applicable Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date a Debenture Indenture Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of, any Trust Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Trust Common Securities, shall be made unless payment in
full in cash of all accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Trust Preferred Securities for all
distribution periods terminating on or prior thereto, or in the case of payment
of the Redemption Price the full amount of such Redemption Price on all
Outstanding Trust Preferred Securities, shall have been made or provided for,
and in funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Trust
Preferred Securities then due and payable.
(b) In the case of the occurrence of any Debenture Indenture Event
of Default, the Holder of Trust Common Securities will be deemed to have waived
any such Event of Default under this Trust Agreement until the effect of all
such Events of Default with respect to the Trust Preferred Securities have been
cured, waived or otherwise eliminated. Until any such Events of Default under
this Trust Agreement with respect to the Trust Preferred Securities have been so
cured, waived or otherwise eliminated, the Property Trustee shall act solely on
behalf of the Holders of the Trust Preferred Securities and not the Holder of
the Trust Common Securities, and only the Holders of the Trust Preferred
Securities will have the right to direct the Property Trustee to act on their
behalf.
Section 4.04 Payment Procedures. Payments in respect of the Trust
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Security Register or, if
the Trust Preferred Securities are held by a Clearing Agency, such Distributions
shall be made to the Clearing Agency, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable distribution dates.
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Payments in respect of the Trust Common Securities shall be made in such manner
as shall be mutually agreed between the Property Trustee and the Holder of the
Trust Common Securities.
Section 4.05 Tax Returns and Reports. The Administrative Trustee(s)
shall prepare (or cause to be prepared), at the Depositor's expense, 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. The Administrative
Trustee(s) shall provide or cause to be provided on a timely basis to each
Holder any Internal Revenue Service form required to be so provided in respect
of the Trust Securities.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.01 Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.03 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
Section 5.02 The Trust Securities Certificates. Each of the Trust
Preferred and Trust Common Securities Certificates shall be issued by the
Administrative Trustees in minimum denominations of $25 and integral multiples
in excess thereof. The Trust Securities Certificates shall be executed on behalf
of the Trust by manual or facsimile signature of at least one Administrative
Trustee. Trust Securities Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Trust Securities Certificates or did not
hold such offices at the date of authentication and delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04.
Section 5.03 Authentication of Trust Securities Certificates. On the
Issue Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust, authenticated and delivered to
or upon the written order of the Depositor signed by its Chairman of the Board,
its President or any Vice President, without further corporate action by the
Depositor, in authorized denominations. No Trust Securities Certificate shall
entitle its Holder to any benefit under this Trust Agreement, or shall be valid
for any purpose, unless there shall appear on such Trust Securities Certificate
a certificate of authentication substantially in the form set forth in Exhibit D
or Exhibit C, as applicable, executed by at least one Administrative Trustee by
manual signature; such authentication shall constitute conclusive evidence that
such Trust Securities Certificate shall have been duly authenticated and
delivered hereunder. All Trust Securities Certificates shall be dated the date
of their authentication.
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Section 5.04 Registration of Transfer and Exchange of Trust Preferred
Securities Certificates. The Security Registrar shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 5.08, a Security Register
in which, subject to such reasonable regulations as it may prescribe, the
Security Registrar shall provide for the registration of Trust Preferred
Securities Certificates and the Trust Common Securities Certificates (subject to
Section 5.10 in the case of the Trust Common Securities Certificates) and
registration of transfers and exchanges of Trust Preferred Securities
Certificates as herein provided. The Property Trustee shall be the initial
Security Registrar.
Upon surrender for registration of transfer of any Trust Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees shall execute, authenticate 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 authentication by the
Administrative Trustee or Trustees. The Security 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 5.08.
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 Administrative Trustees and
the Security Registrar duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Trust Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Security Registrar 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 Security Registrar
or the Administrative Trustees 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 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Security Registrar, or if the Security Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Security
Registrar and the Administrative Trustees 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 Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees or any one of them on behalf of the Trust
shall execute and authenticate and make available for delivery, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Security
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an
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ownership interest in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Trust Securities Certificate shall be found at any
time.
Section 5.06 Persons Deemed Securityholders. Prior to due presentation
of a Trust Securities Certificate for registration of transfer, the Trustees or
the Security Registrar shall treat the Person in whose name any Trust Securities
Certificate shall be registered in the Security Register as the owner of such
Trust Securities Certificate for the purpose of receiving Distributions (subject
to Section 4.01(d)) and for all other purposes whatsoever, and neither the
Trustees nor the Security Registrar shall be bound by any notice to the
contrary.
Section 5.07 Access to List of Securityholders' Names and Addresses.
The Administrative Trustees shall furnish or cause to be furnished to (i) the
Depositor and the Property Trustee semi-annually, not later than June 1 and
December 1 in each year and (ii) the Depositor or the Property Trustee, as the
case may be, within 30 days after receipt by any Administrative Trustee of a
request therefor from the Depositor or the Property Trustee, as the case may be,
in writing, a list, in such form as the Depositor or the Property Trustee, as
the case may be, may reasonably require, of the names and addresses of the
Securityholders as of a date not more than 15 days prior to the time such list
is furnished; provided that the Administrative Trustees shall not be obligated
to provide such list at any time such list does not differ from the most recent
list given to the Depositor and the Property Trustee by the Administrative
Trustees or at any time the Property Trustee is the Security Registrar. If three
or more Securityholders or one or more Holders of Trust Securities Certificates
evidencing not less than 25% of the outstanding Liquidation Amount apply in
writing to the Administrative Trustees, and such application states that the
applicants desire to communicate with other Securityholders with respect to
their rights under this Trust Agreement or under the Trust Securities
Certificates and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Administrative Trustees
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Securityholders. Each Holder, by receiving and holding a Trust Securities
Certificate, shall be deemed to have agreed not to hold either the Depositor or
the Administrative Trustees accountable by reason of the disclosure of its name
and address, regardless of the source from which such information was derived.
Section 5.08 Maintenance of Office or Agency. The Administrative
Trustees shall maintain in the Borough of Manhattan, New York, 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 Trustees in respect of the Trust Securities Certificates
may be served. The Administrative Trustees initially designate Bank One Trust
Company, NA, c/o First Chicago Trust Company of New York, 14 Wall Street, 8th
Floor, Window 2, New York, New York 10005 as the principal agency for such
purposes. The Administrative Trustees shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Security Register or any such office or agency.
Section 5.09 Appointment of Paying Agent. The Paying Agent shall make
Distributions and other payments provided hereby to Securityholders from the
Payment Account and shall report the amounts of such Distributions and payments
to the Administrative Trustees and if such Paying Agent shall be other than the
Property Trustee to the Property
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Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account for the purpose of making the Distributions and payments
provided hereby. The Administrative Trustees may revoke such power and remove
the Paying Agent if such Trustees determine in their 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
Property Trustee, and it may choose any co-paying agent that is acceptable to
the Administrative Trustees and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees and the Depositor. In the event that a Paying Agent
shall resign or be removed, the Administrative Trustees shall appoint a
successor that is acceptable to the Depositor to act as Paying Agent (which
shall be a bank or trust company). The Administrative Trustees shall cause such
successor Paying Agent or any additional Paying Agent appointed by the
Administrative Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Securityholders in trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply to
the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee 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 Ownership of Trust Common Securities by Depositor. On the
Issue Date, the Depositor shall acquire, and thereafter retain, beneficial and
record ownership of the Trust Common Securities. Any attempted transfer of the
Trust Common Securities, except for transfers by operation of law or to an
Affiliate of the Depositor or a permitted successor under Section 801 of the
Subordinated Debenture Indenture, shall be void. The Administrative Trustees
shall cause each Trust Common Securities Certificate issued to the Depositor and
its permitted transferees to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST AGREEMENT REFERRED TO HEREIN".
Section 5.11 Book-Entry Trust Preferred Securities Certificates; Trust
Common Securities Certificate.
(a) 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 Security
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no 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 5.13. Unless and until Definitive
Trust Preferred Securities Certificates have been issued to Owners pursuant to
Section 5.13:
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(i) the provisions of this Section 5.11(a) shall be in full force
and effect;
(ii) the Security Registrar 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 principal of and interest on the Book-Entry Trust Preferred Securities 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;
(iii) to the extent that the provisions of this Section conflict with
any other provisions of this Trust Agreement, the provisions of this Section
shall control;
(iv) 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, agreements between such Owners and
the Clearing Agency and/or the Clearing Agency Participants and the applicable
rules of the Clearing Agency. Unless and until Definitive Trust Preferred
Securities Certificates are issued pursuant to Section 5.13, the 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; and
(v) whenever this Trust Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Trust Preferred
Securities Certificates evidencing a specified percentage of the aggregate
Liquidation Amount, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such effect
from Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
applicable class of Trust Preferred Securities Certificates and has delivered
such instructions to the Trustees.
(b) A single Trust Common Securities Certificate representing the
Trust Common Securities shall be issued to the Depositor in the form of a
definitive Trust Common Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent 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 5.13, 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 5.13 Definitive Trust Preferred Securities Certificates. If (i)
the Depositor advises the Trustees 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 within 90 days of receipt by the Depositor of such
written advice, or (ii) the Depositor at its option advises the Trustees in
writing that it elects to terminate the book-entry system through the Clearing
Agency, then the Administrative Trustees shall notify the Clearing Agency and
Holders of the Trust Preferred Securities. Upon surrender to the Administrative
Trustees of the typewritten Trust Preferred Securities
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Certificate or Certificates representing the Book-Entry Trust Preferred
Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees or any one of them shall execute and
authenticate the Definitive Trust Preferred Securities Certificates in
accordance with the instructions of the Clearing Agency. Neither the Security
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 Trustees 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
Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
Section 5.14 Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than the undivided beneficial ownership interest in
the assets of the Trust conferred by their Trust Securities, and they shall have
no right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or other 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. Except as
otherwise provided in the Expense Agreement and Section 10.01 hereof with
respect to the Depositor, the Holders of the Trust Securities 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.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.10 or Section
10.03 of this Trust Agreement, in the Subordinated Debenture Indenture, 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
Securities Certificates, be construed so as to constitute the Securityholders
from time to time as joint venturers, partners or members of an association.
(b) So long as any Subordinated Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
executing any trust or power conferred on the Indenture Trustee with respect to
such Subordinated Debentures, (ii) consent to waive any past default which is
waivable under Section 513 of the Subordinated Debenture Indenture, (iii)
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exercise any right to rescind or annul a declaration that the principal of all
the Subordinated Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Subordinated Debenture Indenture
or the Subordinated Debentures, where such consent shall be required, or to any
other action, as holder of the Subordinated Debentures, under the Subordinated
Debenture Indenture, without, in each case, obtaining the prior approval of the
Holders of at least 66-2/3% in Liquidation Amount of the Outstanding Trust
Preferred Securities; provided, however, that where a consent under the
Subordinated Debenture Indenture would require the consent of each holder of
Subordinated Debentures affected thereby, no such consent shall be given by the
Trustees without the prior written consent of each Holder of Trust Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Trust Preferred Securities, except pursuant
to a subsequent vote of the Holders of Trust Preferred Securities. The Property
Trustee shall notify all Holders of the Trust Preferred Securities of any notice
of default received from the Indenture Trustee with respect to the Subordinated
Debentures.
(c) If any proposed amendment to the Trust Agreement provides for,
or the Trustees otherwise propose to effect, (i) any action that would adversely
affect the powers, preferences or special rights of the Trust Preferred
Securities, whether by way of amendment to this 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 66-2/3% in Liquidation Amount of the
Outstanding Trust Preferred Securities.
(d) Notwithstanding that holders of Trust Preferred Securities are
entitled to vote under the circumstances described in Section 6.01(b) and
6.01(c), any of the Trust Preferred Securities that are owned (whether of record
or beneficially) by the Corporation, the Administrative Trustees or any
Affiliate of the Corporation or any Administrative Trustee shall, for purposes
of such vote, be treated as if they were not outstanding.
Section 6.02 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 Administrative Trustees pursuant to Section 10.08 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. Any and all notice to which any Trust Preferred
Securityholder hereunder may be entitled and any and all communications shall be
deemed duly served or given if mailed, postage prepaid, addressed to any Trust
Preferred Securityholders of record at his last known address as recorded on the
Security Register.
Section 6.03 Meetings of Trust Preferred Securityholders. No annual
meeting of Securityholders is required to be held. The Administrative Trustees,
however, shall call a meeting of Securityholders to vote on any matter upon the
written request of the Trust Preferred Securityholders of record of 25% of the
Trust Preferred Securities (based upon their Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time
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in their discretion, call a meeting of Trust Preferred Securityholders to vote
on any matters as to which Trust Preferred Securityholders are entitled to vote.
Trust Preferred Securityholders of record of 50% of the 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 more
than 66-2/3% 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 the action of the
Securityholders, unless this Trust Agreement requires a greater proportion of
affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be entitled to one
vote for each $25 of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote may vote by proxy, provided that no proxy shall
be voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. 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 Securities are held jointly by several Persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent. Any action which
may be taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding at least 66-2/3% of all outstanding Trust Securities
entitled to vote in respect of such action (or such other proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing (based upon their Liquidation Amount).
Section 6.07 Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action,
the Administrative Trustees may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
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Section 6.08 Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent appointed
in writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered to the
Administrative Trustees. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Securityholders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustees deem sufficient.
The ownership of Trust Preferred Securities shall be proved by the
Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Holders of Trust Securities and
the Administrative Trustees or among such Securityholders or Trustees with
respect to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.09 Inspection of Records. Upon reasonable notice to the
Trustees, 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.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
Section 7.01 Representations and Warranties of the Property Trustee and
Delaware Trustee. The Bank in its separate corporate capacity and as the
Property Trustee and Bank One Delaware, Inc. in its separate corporate
capacity and as the Delaware Trustee, each on behalf of and as to itself, hereby
represents and warrants for the benefit of the Depositor and the Securityholders
that:
(a) the Bank is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws of the State of
Michigan, and Bank One Delaware, Inc. is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) each of the Bank in its separate corporate capacity and in its
capacity as the Property Trustee and Bank One Delaware, Inc. in its separate
corporate capacity and in its capacity as the Delaware Trustee has full
corporate power, authority and legal right to execute, deliver this Trust
Agreement and to perform their obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by each of 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 it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance of this Trust Agreement
and the consummation of the transactions contemplated thereby by each of the
Bank in its capacity as the Property Trustee and by Bank One Delaware, Inc. in
its capacity as Delaware Trustee of this Trust Agreement have been duly
authorized by all necessary corporate action on the part of the Bank in its
separate corporate capacity and as Property Trustee, and by Bank One Delaware,
Inc. in its separate corporate capacity and as the Delaware Trustee and do not
require any approval of stockholders of the Bank or of Bank One Delaware, Inc.
and such execution, delivery and performance will not (i) violate the Bank's or
Bank One Delaware, Inc.'s charter or by-laws, or (ii) violate any law,
governmental rule or regulation of the United States or the States of Michigan
or Delaware, as the case may be, governing the banking, trust, or corporate
powers (as appropriate in context) of the Bank in its separate corporate
capacity and in its capacity as the Property Trustee or of Bank One Delaware,
Inc. in its capacity as the Delaware Trustee or in its separate corporate
capacity, (as appropriate in context) or any indenture, mortgage, bank credit
agreement, note or bond purchase agreement, long-term lease, license or other
agreement or any order, judgment or decree applicable to the Bank, the Property
Trustee, Bank One Delaware, Inc. or the Delaware Trustee; and
(e) neither the authorization, execution, delivery or performance
by the Bank, the Delaware Corporation, the Property Trustee, or the Delaware
Trustee of this Trust Agreement, nor the consummation of any of the transactions
by the Bank, the Delaware Corporation, the Property
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Trustee or the Delaware Trustee (as appropriate in context) contemplated herein
or therein, nor the issuance of the Trust Securities Certificates pursuant to
this Trust Agreement require the consent or approval of, the withholding of
objection on the part of, the giving of notice to, the filing, the registration,
or the qualification with or the taking of any other action with respect to any
governmental authority or agency under any existing federal, Michigan, or
Delaware law governing the banking, trust, or corporate powers of the Property
Trustee or the Delaware Trustee (as appropriate in context).
(f) There are no proceedings pending or threatened against the Bank,
the Delaware Corporation, 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 have a material adverse
effect on the right, power and authority of the Bank, the Delaware Corporation,
the Property Trustee or the Delaware Trustee to enter into or perform its
obligations under this Trust Agreement.
Section 7.02 Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at the 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 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 VIII
THE TRUSTEES
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and the Delaware Business Trust Act and, in
the case of the Property Trustee, 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 reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to them. Whether or not therein expressly so provided,
every provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section.
(b) All payments made by the Property Trustee in respect of the Trust
Securities shall be made only from the income and proceeds from the Trust
Property and only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee to make payments
in accordance with the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income and proceeds from
the Trust Property to the extent available for distribution to it as herein
provided and that the Trustees are not personally liable to such Holder for any
amount distributable in respect of any Trust Security or for any other liability
in respect of any Trust Security. This Section
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8.01(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
Section 8.02 Notice of Defaults. Within 90 days after the occurrence of
any default known to the Property Trustee, the Property Trustee shall transmit,
in the manner and to the extent provided in Section 10.08, notice of any such
default to the Securityholders, the Administrative Trustees and the Depositor,
unless such default shall have been cured or waived. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
Section 8.03 Certain Rights of Property Trustee. Subject to the
provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) if (A) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action, or
(B) in construing any of the provisions in this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein, or (C) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Trust Preferred Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken. The Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith negligence or willful misconduct;
(iii) the Property Trustee may consult with counsel of its selection
and the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(iv) 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;
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(v) 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 or other document, unless requested in writing to do so by one or
more Securityholders; and
(vi) 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.
Section 8.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Depositor, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities in
accordance with Sections 2.04 and 2.05.
The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless an officer of the Property Trustee
assigned to its Corporate Trustee administrative department shall have received
written notice from the Corporation, any Holder or any other Trustee that such
funds are not legally available.
Section 8.05 Trustee May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of the Trustees or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.06 Compensation; Fees; Indemnity.
The Depositor agrees:
(1) to pay to the Trustees from time to time reasonable compensation
for all services rendered by the Trustees hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
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 their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their negligence, willful
misconduct or bad faith; and
(3) to indemnify the Trustees for, and to hold the Trustees harmless
against, any and all loss, damage, claims, liability or expense incurred without
negligence, willful misconduct or bad faith on their part, arising out of or in
connection with the acceptance or administration of this Trust Agreement,
including the costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
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The provisions of this Section 8.06 shall survive the termination of
this Trust Agreement or the resignation or removal of any Trustee.
Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that has
a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age and
a resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware that shall act through one or more
persons authorized to bind such entity.
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. To the extent permitted by the Trust Indenture Act, the Property
Trustee shall not be deemed to have a conflicting interest by virtue of being
trustee under the Trust Guarantee. Subject to the foregoing, 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 Securityholders 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, (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 8.09 Co-Property Trustees and Separate Trustee.
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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 Holder of the Trust Common Securities
and the Property Trustee shall have power to appoint, and upon the written
request of the Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-property trustee, jointly
with the Property Trustee, of all or any part of such Trust Property, or to act
as separate trustee of any such Trust 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 Agreement. If
the Depositor does not join in such appointment within 15 days after the receipt
by it of a request so to do, or in case an Debenture Indenture Event of Default
has occurred and is continuing, the Property Trustee alone shall have power to
make such appointment. Any co-property trustee or separate trustee appointed
pursuant to this Section shall satisfy the requirements of Section 8.07.
Should any written instrument from the Depositor be required by any
co-property trustee or separate trustee so appointed for more fully confirming
to such co-property 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-property trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(i) The Trust Securities shall be executed, authenticated and
delivered and all rights, powers, duties, and obligations hereunder in respect
of the custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees hereunder, shall be
exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-property trustee or
separate trustee jointly, as shall be provided in the instrument appointing such
co-property 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-property trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-property trustee or separate trustee appointed
under this Section, and, in case an Debenture Indenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-property 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
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successor to any co-property trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section.
(iv) No co-property trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee, or
any other such trustee hereunder.
(v) The Trustees shall not be liable by reason of any act of a
co-property trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-property 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 Holders. 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 resigning Relevant Trustee may petition, at
the expense of the Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless an Debenture Indenture Event of Default shall have occurred and
be continuing, any Trustee may be removed at any time by Act of the Holder of
the Trust Common Securities. If a Debenture Indenture 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 Liquidation Amount of the Trust Preferred Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Holder of the Trust Common
Securities at any time. In no event will the Holders of the Trust Preferred
Securities have a right to vote to appoint, remove or replace the Administrative
Trustees.
If any Trustee shall resign, be removed or become incapable of
continuing to act as Trustee, or if a vacancy shall occur in the office of any
Trustee for any reason, at a time when no Debenture Indenture Event of Default
shall have occurred and be continuing, the Holder of the Trust Common
Securities, by its Act of the Holders of the Trust Common Securities, shall
promptly appoint a successor Trustee or successor Trustees, and each 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, or a vacancy shall occur in the office of any such Trustee
for any reason, at a time when an Debenture Indenture Event of Default shall
have occurred and be continuing, the Holders of Trust Preferred Securities, by
Act of the Holders of a majority in Liquidation Amount of the Trust Preferred
Securities then Outstanding, shall promptly appoint a successor Relevant Trustee
or Relevant Trustees and
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such successor Relevant Trustee or Relevant Trustees shall comply with the
applicable requirements of Section 8.11. If an Administrative Trustee shall
resign, be removed or become incapable of acting as Administrative Trustee, or a
vacancy shall occur in the office of any such Trustee for any reason, at a time
when a Debenture Indenture Event of Default shall have occurred and be
continuing, the Holder of the Trust Common Securities, by Act of the Holder of
the Trust Common Securities, shall promptly appoint a successor Administrative
Trustee or Administrative Trustees and such successor Administrative Trustee or
Administrative Trustees shall comply with the applicable requirements of Section
8.11. If no successor Relevant Trustee shall have been so appointed in
accordance with this Section 8.10 and accepted appointment in the manner
required by Section 8.11, any Holder who has been a Holder of Trust Securities
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all Holders
in the manner provided in Section 10.08 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 Administrative Trustee or a 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 (i) the act of the remaining Administrative Trustee or (ii)
otherwise by the Depositor (with the successor in each case being a Person who
satisfies the eligibility requirements for an Administrative Trustee or a
Delaware Trustee, as the case may be, set forth in Section 8.07).
Section 8.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, every such successor
Relevant Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee; but, on the request
of the Depositor or the successor Relevant Trustee, such retiring Relevant
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Relevant Trustee all the rights, powers and
trusts of the retiring Relevant Trustee and shall duly assign, transfer and
deliver to such successor Relevant Trustee all property and money held by such
retiring Relevant Trustee hereunder.
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 preceding paragraph.
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.
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Section 8.12 Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against Depositor or
Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Subordinated Debentures or
the Trust Securities), the Property Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims against the
Depositor or Trust (or any such other obligor). For purposes of Section
311(b)(4) and (6) of the Trust Indenture Act:
(a) "cash transaction" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Depositor or the Trust (or any such obligor) for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Property
Trustee simultaneously with the creation of the creditor relationship with the
Depositor or the Trust (or any such obligor) arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
Section 8.14 Reports by Property Trustee.
(a) Within 60 days after May 15th of each year commencing with May
15, 2000, if required by Section 313(a) of the Trust Indenture Act, the Property
Trustee shall transmit a brief report dated as of such May 15 with respect to
any of the events specified in such Section 313(a) that may have occurred since
the later of the date of this Trust Agreement or the preceding May 15.
(b) The Property Trustee shall transmit to Securityholders the
reports required by Section 313(b) of the Trust Indenture Act at the times
specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and (d) of the Trust
Indenture Act.
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Section 8.15 Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and, within 120 days after the end of each
fiscal year of the Depositor, the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act in the form and in the manner required by
Section 314 of the Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions Precedent. Each of
the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement 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 pursuant to Section 314(c)(1) of the
Trust Indenture Act shall comply with Section 314(e) of the Trust Indenture Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be four, provided that the
Depositor by written instrument may increase the number of Administrative
Trustees or decrease the number to one but not to zero.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all powers granted to the
Administrative Trustees and shall discharge the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee, may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.07(A), including any registration statement or amendment thereto filed with
the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number the doing of such things and the execution
of such instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
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Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders.
If a Debenture Indenture Event of Default occurs and is continuing,
then (i) the Holders of Trust Preferred Securities will rely on the enforcement
by the Property Trustee of its rights against the Corporation as the holder of
the Subordinated Debentures and (ii) the Holders of a majority in aggregate
Liquidation Amount of the Trust Preferred Securities will have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Property Trustee or to direct the exercise of any trust or
power conferred upon the Property Trustee under this Trust Agreement, including
the right to direct the Property Trustee to exercise the remedies available to
it as a holder of the Subordinated Debentures, provided that such direction
shall not be in conflict with any rule of law or with this Trust Agreement, and
could not involve the Property Trustee in personal liability in circumstances
where reasonable indemnity would not be adequate. If the Property Trustee fails
to enforce its rights under the Subordinated Debentures, a Holder of Trust
Preferred Securities may, to the extent permitted by applicable law, institute a
legal proceeding against the Corporation to enforce its rights under this Trust
Agreement without first instituting any legal proceeding against the Property
Trustee or any other Person, including the Trust; it being understood and
intended that no one or more of such Holders shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this Trust
Agreement to affect, disturb or prejudice the rights of any other of such
Holders or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Trust Agreement, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders. Notwithstanding the foregoing, a Holder of Trust Preferred Securities
may institute a legal proceeding directly against the Corporation without first
instituting a legal proceeding against or requesting or directing that action be
taken by the Property Trustee or any other Person, for enforcement of payment to
such Holder of principal of or interest on the Subordinated Debentures having a
principal amount equal to the aggregate stated Liquidation Amount of the Trust
Preferred Securities of such Holder on or after the due dates therefor specified
or provided for in the Subordinated Debentures. The Corporation shall be
subrogated to all rights of the Holders of Trust Preferred Securities in respect
of any amounts paid to such Holders by the Corporation pursuant to this Section.
ARTICLE IX
TERMINATION AND LIQUIDATION
Section 9.01 Termination Upon Expiration Date. The Trust shall
automatically terminate on ________________ (the "Expiration Date") or earlier
pursuant to Section 9.02 or 9.03.
Section 9.02 Early Termination. Upon the first to occur of any of the
following events (such first occurrence, an "Early Termination Event"), the
Trust shall be dissolved and terminated in accordance with the terms hereof:
(i) the occurrence of a Bankruptcy Event in respect of the Depositor,
dissolution or liquidation of the Depositor, or the dissolution of the Trust
pursuant to judicial decree;
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<PAGE> 47
(ii) the delivery of written direction to the Property Trustee by the
Depositor at any time (which direction is optional and wholly within the
discretion of the Depositor) to terminate the Trust and distribute the
Subordinated Debentures to Securityholders as provided in Section 9.04; and
(iii) the payment at maturity or redemption of all of the Subordinated
Debentures, and the consequent payment of the Trust Securities.
Section 9.03 Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the latest to occur of the following: (a) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02, of all amounts or instruments required to be distributed hereunder upon
the final payment of the Trust Securities; (b) the payment of any expenses owed
by the Trust; or (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii) of
Section 9.02 occurs, the Trust shall be liquidated and the Property Trustee
shall distribute the Subordinated Debentures to the Securityholders as provided
in this Section 9.04.
(b) In connection with a distribution of the Subordinated Debentures,
each Holder of Trust Securities shall be entitled to receive after the
satisfaction of liabilities to creditors of the Trust (as evidenced by a
certificate of the Administrative Trustees), a Like Amount of Subordinated
Debentures. Notice of liquidation shall be given by the Trustees by first-class
mail, postage prepaid, mailed not later than 30 nor more than 60 days prior to
the Liquidation Date to each Holder of Trust Securities at such Holder's address
appearing in the Security Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust Securities
Certificates not surrendered for exchange will be deemed to represent a Like
Amount of Subordinated Debentures; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Subordinated Debentures
as the Administrative Trustees or the Property Trustee shall deem appropriate.
(c) In order to effect the liquidation of the Trust and distribution
of the Subordinated Debentures to Securityholders, the Property Trustee shall
establish a record date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of
Subordinated Debentures in exchange for the Outstanding Trust Securities
Certificates.
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(d) After the Liquidation Date, (i) the Trust Securities will no
longer be deemed to be Outstanding, (ii) certificates representing a Like Amount
of Subordinated Debentures will be issued to Holders of Trust Securities
Certificates, upon surrender of such certificates to the Administrative Trustees
or their agent for exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of
Subordinated Debentures, accruing interest at the rate provided for in the
Subordinated Debentures from the last Distribution Date on which a Distribution
was made on such Trust Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of interest or
principal will be made to Holders of Trust Securities Certificates with respect
to such Subordinated Debentures) and (iv) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Subordinated Debentures upon surrender of Trust Securities Certificates.
(e) The Depositor will use its best efforts to have the Subordinated
Debentures that are distributed in exchange for the Trust Preferred Securities
listed on such securities exchange as the Trust Preferred Securities are then
listed. The Depositor may elect to have the Subordinated Debentures issued in
book-entry form to the Clearing Agency or its nominee.
Section 9.05 Bankruptcy. If an Early Termination Event specified in
clause (i) of Section 9.02 has occurred, the Trust shall be liquidated. The
Property Trustee shall distribute the Subordinated Debentures to the
Securityholders as provided in Section 9.04, unless such distribution is
determined by the Administrative Trustees not to be practical, in which event
the Holders will be entitled to receive out of the assets of the Trust available
for distribution to Securityholders, after satisfaction of liabilities to
creditors, an amount equal to the Liquidation Amount per Trust Security plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If such Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder
of the Trust Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, winding-up or termination pro rata
(determined as aforesaid) with Holders of Trust Preferred Securities, except
that, if an Debenture Indenture Event of Default has occurred and is continuing,
the Trust Preferred Securities shall have a priority over the Trust Common
Securities pursuant to Section 4.03.
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ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor irrevocably and unconditionally guarantees to
each person or entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to Holders of any Trust Securities or
other similar interests in the Trust the amounts due such Holders pursuant to
the terms of the Trust Preferred Securities or such other similar interests, as
the case may be. Such guarantee is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
Section 10.02 Limitation of Rights of Securityholders. The bankruptcy,
death or dissolution or incapacity of any Person having an interest, beneficial
or otherwise, in a Trust Security shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in and for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 10.03 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Administrative Trustees and the Depositor, without the consent of any
Securityholders and, except as provided in subsection (e) below, without the
consent of the Property Trustee or the Delaware Trustee, (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, provided,
however, that any such amendment shall not adversely affect in any material
respect the interests of any Securityholder, (ii) to modify, eliminate or add to
any provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will not be classified as other than a grantor trust for
United States federal income tax purposes at any time that any Trust Securities
are outstanding; provided, however, that, in the case of clause (i), any
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders or (iii) to provide the Property Trustee with the
authority to execute on behalf of the Administrative Trustees Definitive Trust
Preferred Securities Certificates.
(b) Except as provided in Section 10.03(c) hereof, any provision in
this Trust Agreement may be amended by the Trust or the Trustees with (i) the
consent of Securityholders representing not less than 66-2/3% (based upon
Liquidation Amounts) of the Trust Securities then Outstanding and (ii) receipt
by the Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States federal income
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tax purposes or the Trust's exemption from status of an "investment company"
under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution (or payment upon redemption) on the Trust Securities or otherwise
adversely affect the amount of any Distribution (or payment upon redemption)
required to be made in respect of the Trust Securities as of a specified date,
(ii) restrict the right of a Securityholder to institute suit for the
enforcement of any such payment on or after such date, (iii) change the purpose
of the Trust, (iv) authorize the issuance of any additional beneficial interests
in the Trust, or (v) change the consent required pursuant to this Section 10.03.
(d) Notwithstanding any other provisions of this Trust Agreement, the
Trustees shall not enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to be treated other than as a grantor
trust for United States federal income tax purposes or to fail or cease to
qualify for the exemption from status of an "investment company" under the
Investment Company Act of 1940, as amended, afforded by Rule 3a-5 thereunder.
(e) Without the consent of the Depositor, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor. Without the consent of the Property Trustee or the Delaware Trustee,
as the case may be, this Trust Agreement may not be amended in a manner which
affects the powers, duties or rights of the Property Trustee or the Delaware
Trustee, respectively. In executing any amendment permitted by this Trust
Agreement, the Trustees shall be entitled to receive, and (subject to Section
8.01) shall be fully protected in relying upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this Trust
Agreement. Any Trustee may, but shall not be obligated to, enter into any such
amendment which affects such Trustee's own rights, duties, immunities or
liabilities under this Trust Agreement or otherwise.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
Section 10.04 Separability. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.05 Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE.
Section 10.06 Notice of Deferral of Distribution. In the event that the
Depositor exercises its right to extend an interest payment period in respect of
the Subordinated Debentures pursuant to Section 104 of the Supplemental
Indenture and notice of such extension
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has been provided by the Depositor to the Property Trustee, the Property Trustee
shall give written notice of such extension and of the deferral of the related
Distribution on the Trust Securities, by first-class mail, postage prepaid,
mailed not later than ten days prior to the Distribution Date upon which such
Distribution would otherwise be payable, to each Holder of Trust Preferred
Securities at such Holder's address appearing in the Security Register.
Section 10.07 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.08 Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, first class postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (i) in the case of a Trust Preferred Securityholder, to
such Trust Preferred Securityholder as such Securityholder's name and address
appear on the Security Register and (ii) in the case of the Trust Common
Securityholder or the Depositor, to SEMCO Energy, Inc., 405 Water Street, P.O.
Box 5026, Port Huron, Michigan 48061-5026, Attention: Edric R. Mason, Jr.,
Facsimile No. (810) 989-4098. 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 or the Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the Property
Trustee, Bank One Trust Company, NA, Corporate Trust Administration, 11th Floor,
Suite 8110, 611 Woodward Avenue, Detroit, Michigan 48226; with respect to the
Delaware Trustee, Bank One Delaware, Inc., 3 Christina Centre, 201 N. Walnut
St., Wilmington, Delaware 19801, Attention: Corporate Trust Services Division,
with a copy to Bank One Trust Company, NA, Corporate Trust Administration, 11th
Floor, Suite 8110, 611 Woodward Avenue, Detroit, Michigan 48226, as the case may
be; and (ii) with respect to the Administrative Trustees, to them at the address
above for notices to the Depositor, marked Attention: Administrative Trustees of
SEMCO Capital Trust III, c/o SEMCO Energy, Inc., 405 Water Street, P.O. Box
5026, Port Huron, Michigan 48061-5026, Attn: Edric R. Mason, Jr. Such notice,
demand or other communication to or upon the Trust or the Trustees shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the applicable Trustee.
Section 10.09 Agreement Not to Petition. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, reorganization, arrangement, insolvency, liquidation or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer with
the bankruptcy court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take such action and
should be stopped and precluded therefrom and such other defenses, if any, as
counsel for
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the Trustees or the Trust may assert. The provisions of this Section 10.09 shall
survive the termination of this Trust Agreement.
Section 10.10 Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE TRUST GUARANTEE AND THE
SUBORDINATED DEBENTURE INDENTURE AND THIS TRUST AGREEMENT, AND PROVIDE NOTICE TO
SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER
AND SUCH OTHERS.
Section 10.11 Successors. This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to both the Trust and the
Trustees, including any successor by operation of law.
IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement or have caused this Trust Agreement to be executed on their behalf,
all as of the day and year first above written.
SEMCO ENERGY, INC.
By:
-------------------------------------------
--------------------------------------
Its
-----------------------------------
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BANK ONE TRUST COMPANY, NA,
as Property Trustee
By:
-------------------------------------------
----------------------------,
Title:
--------------------------------
BANK ONE DELAWARE, INC.,
as Delaware Trustee
By:
-------------------------------------------
J. Michael Banas
Title: Vice President
----------------------------------------------
Sebastian Coppola, as Administrative Trustee
----------------------------------------------
Edric R. Mason, Jr., as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST
OF
SEMCO CAPITAL TRUST III
THIS CERTIFICATE OF TRUST OF SEMCO CAPITAL TRUST III (the "Trust"), is
being duly executed and filed by the undersigned as trustee, to form a business
trust under the Delaware Business Trust Act (12 Del., C. ss. 3801 et seq.) (the
"Act").
1. Name. The name of the business trust to be formed by this
Certificate of Trust is SEMCO Capital Trust III.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware are Bank One Delaware,
Inc., 3 Christina Centre, 201 N. Walnut St., Wilmington,
Delaware 19801
3. Effective Date. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned, has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
BANK ONE DELAWARE, INC., not in its individual
capacity but solely as Trustee of the Trust
By:
-------------------------------------------
Name: J. Michael Banas
Title: Vice President
----------------------------------------------
Sebastian Coppola, as
Administrative Trustee
----------------------------------------------
Edric R. Mason, Jr., as
Administrative Trustee
Exhibit A- Page 1
<PAGE> 55
EXHIBIT B
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is
made as of ___________, between SEMCO Energy, Inc., a Michigan corporation (the
"Corporation"), and SEMCO Capital Trust III, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue its Trust Common Securities (the
"Trust Common Securities") to the Corporation and to issue and sell SEMCO
Capital Trust III ____ % Trust Preferred Securities (the "Trust Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Trust dated
as of _______, 1999 as the same may be amended from time to time (the "Trust
Agreement") and acquire Series ____% Subordinated Debentures due _________ (the
"Subordinated Debentures") from the Corporation; and
WHEREAS, the Corporation is the issuer of the Subordinated Debentures.
NOW, THEREFORE, in consideration of the purchase by each holder of the
Trust Securities, which purchase the Corporation hereby agrees shall benefit the
Corporation and which purchase the Corporation acknowledges will be made in
reliance upon the execution and delivery of this Agreement, the Corporation and
the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Corporation. Subject to the terms and
conditions hereof, the Corporation hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to holders of any Trust
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Trust Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be effective
or shall be reinstated, as the case may be, if at any time any holder of Trust
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Trust Preferred Securities, under any Obligation, under the Trust
Guarantee Agreement dated the date hereof by the Corporation and Bank One Trust
Company, NA, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Exhibit B- Page 1
<PAGE> 56
Section 1.03. Waiver of Notice. The Corporation hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Corporation hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 1.04. No Impairment. The obligations, covenants, agreements and
duties of the Corporation under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of the assets of
the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, the Corporation with respect to the happening of any of
the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
directly against the Corporation and the Corporation waives any right or remedy
to require that any action be brought against the Trust or any other person or
entity before proceeding against the Corporation.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements contained
in this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there remains any Beneficiary or
any Trust Preferred Securities are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Trust Preferred Securities.
Section 2.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), or by registered or certified mail, addressed as follows
(and if so given, shall be deemed given when mailed), to-wit:
Exhibit B- Page 2
<PAGE> 57
SEMCO Capital Trust III
c/o SEMCO Energy, Inc.
405 Water Street
Port Huron, Michigan 48061-5026
Facsimile No.: (810) 989-4098
Attention: Edric R. Mason, Jr.
SEMCO Energy, Inc.
405 Water Street
Port Huron, Michigan 48061-5026
Facsimile No.: (810) 989-4098
Attention: Sherry L. Abbott
Section 2.04. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN.
THIS AGREEMENT is executed as of the date and year first above written.
SEMCO ENERGY, INC.
By:
----------------------------------------------
Name:
Title:
-----------------------------------------
SEMCO CAPITAL TRUST III
By:
----------------------------------------------
Sebastian Coppola, as Administrative Trustee
By:
----------------------------------------------
Edric R. Mason, Jr., as Administrative Trustee
Exhibit B- Page 3
<PAGE> 58
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS PROVIDED IN THE TRUST
AGREEMENT REFERRED TO HEREIN
Certificate Number Number of Trust Common Securities
C-1 --------------------
Certificate Evidencing Trust Common Securities
of
SEMCO Capital Trust III
Trust Common Securities
(Liquidation Amount $25 per Trust Common Security)
SEMCO Capital Trust III, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that SEMCO Energy,
Inc., (the "Holder") is the registered owner of ______ Trust Common Securities
of the Trust representing undivided beneficial interests in the assets of the
Trust and designated the Trust Common Securities (Liquidation Amount $25 per
Trust Common Security) (the "Trust Common Securities"). In accordance with
Section 5.10 of the Trust Agreement (as defined below) the Trust Common
Securities are not transferable, except by operation of law or to an Affiliate
of the Holder or a permitted successor under Section 801 of the Subordinated
Debenture Indenture, dated as of ____________, 1999, between the Holder and
_________________, as trustee, and any attempted transfer hereof shall be void.
The designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Trust Common Securities are set forth in, and this
certificate and the Trust Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of _________, as the same may be
amended from time to time (the "Trust Agreement"), including the designation of
the terms of the Trust Common Securities as set forth therein. The Trust will
furnish a copy of the Trust Agreement to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Exhibit C- Page 1
<PAGE> 59
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this _____day of _______, ____.
SEMCO Capital Trust III
By:
---------------------------------------------
Sebastian Coppola
as Administrative Trustee
By:
---------------------------------------------
Edric R. Mason, Jr.,
as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Trust Common Securities referred to in the within
mentioned Trust Agreement.
------------------------------------------------
Sebastian Coppola, as Administrative Trustee
Exhibit C- Page 2
<PAGE> 60
EXHIBIT D
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to SEMCO Capital
Trust III 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
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), any transfer, pledge, or other use hereof for value or
otherwise by or to any person is wrongful inasmuch as the registered owner
thereof, Cede & Co., has an interest herein.
Certificate Number Number of Trust Preferred Securities
P- CUSIP NO.
Certificate Evidencing Trust Preferred Securities
of
SEMCO Capital Trust III
_____ % Trust Preferred Securities
(Liquidation Amount $25 per Trust Preferred Security)
SEMCO Capital Trust III, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of ______ Trust Preferred
Securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the SEMCO Capital Trust III ____ % Trust
Preferred Securities (Liquidation Amount $25 per Trust Preferred Security) (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 5.04 of the Trust 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 _________, 1999,
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 holder of this certificate is entitled to the benefits of a guarantee by
SEMCO Energy, Inc., a Michigan corporation (the "Corporation"), pursuant to a
Trust Guarantee Agreement between the Corporation and Bank One Trust Company,
NA, as guarantee trustee, dated as of _________, 1999, as the same may be
amended from time to time (the "Trust Guarantee"), to the extent provided
therein. The Trust will furnish a copy of the Trust Agreement and the Trust
Guarantee to the holder of this certificate without charge upon written request
to the Trust at its principal place of business or registered office.
Exhibit D- Page 1
<PAGE> 61
Upon receipt of this certificate, the holder of this certificate is
bound by the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this _____ day of _________, ____.
SEMCO CAPITAL TRUST III
By:
----------------------------------------------
Sebastian Coppola, as Administrative Trustee
By:
----------------------------------------------
Edric R. Mason, Jr., as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to in the within
mentioned Trust Agreement.
-------------------------------------------------
Sebastian Coppola, as Administrative Trustee
Exhibit D- Page 2
<PAGE> 62
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 Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
------------------------------
Signature:
-------------------------
(Sign exactly as your name appears on the other side of this Trust Preferred
Security Certificate)
Exhibit D- Page 3
<PAGE> 1
EXHIBIT 4.15
GUARANTEE AGREEMENT
Between
SEMCO ENERGY, INC.
(as Guarantor)
and
BANK ONE TRUST COMPANY, NA
(as Trustee)
Dated as of ________________, 1999
<PAGE> 2
TABLE OF CONTENTS*
Page
ARTICLE I DEFINITIONS....................................................1
SECTION 1.01. Definitions...........................................1
ARTICLE II TRUST INDENTURE ACT...........................................3
SECTION 2.01. Trust Indenture Act; Application......................3
SECTION 2.02. Lists of Holders of Securities........................3
SECTION 2.03. Reports by the Trustee................................4
SECTION 2.04. Periodic Reports to Trustee...........................4
SECTION 2.05. Evidence of Compliance with Conditions Precedent......4
SECTION 2.06. Events of Default; Waiver.............................4
SECTION 2.07. Event of Default; Notice..............................4
SECTION 2.08. Conflicting Interests.................................5
ARTICLE III POWERS, DUTIES AND RIGHTS OF TRUSTEE.........................5
SECTION 3.01. Powers and Duties of the Trustee......................5
SECTION 3.02. Certain Rights of Trustee.............................6
SECTION 3.03. Compensation; Fees; Indemnity.........................8
ARTICLE IV TRUSTEE.......................................................8
SECTION 4.01. Trustee; Eligibility..................................8
SECTION 4.02. Appointment, Removal and Resignation of Trustee.......9
ARTICLE V GUARANTEE......................................................9
SECTION 5.01. Guarantee.............................................9
SECTION 5.02. Waiver of Notice and Demand...........................9
SECTION 5.03. Obligations Not Affected..............................10
SECTION 5.04. Rights of Holders.....................................10
SECTION 5.05. Guarantee of Payment..................................11
SECTION 5.06. Subrogation...........................................11
SECTION 5.07. Independent Obligations...............................11
ARTICLE VI SUBORDINATION................................................11
SECTION 6.01. Subordination.........................................11
- ----------------------------
* This Table of Contents does not constitute part of the Indenture or have any
bearing upon the interpretation of any of its terms and provisions.
i
<PAGE> 3
ARTICLE VII TERMINATION..................................................12
SECTION 7.01. Termination...........................................12
ARTICLE VIII MISCELLANEOUS...............................................12
SECTION 8.01. Successors and Assigns................................12
SECTION 8.02. Amendments............................................12
SECTION 8.03. Notices...............................................12
SECTION 8.04. Benefit...............................................13
SECTION 8.05. Interpretation........................................13
SECTION 8.06. Governing Law.........................................14
ii
<PAGE> 4
CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a)...................................................................4.01(a)
310(b).............................................................4.01(c), 2.08
310(c)..............................................................Inapplicable
311(a)...................................................................2.02(b)
311(b)...................................................................2.02(b)
311(c)..............................................................Inapplicable
312(a)...................................................................2.02(a)
312(b)...................................................................2.02(b)
313.........................................................................2.03
314(a)......................................................................2.04
314(b)..............................................................Inapplicable
314(c)......................................................................2.05
314(d)..............................................................Inapplicable
314(e)..........................................................1.01, 2.05, 3.02
314(f)................................................................2.01, 3.02
315(a)...................................................................3.01(d)
315(b)......................................................................2.07
315(c)......................................................................3.01
315(d)...................................................................3.01(d)
315(e)..............................................................Inapplicable
316(a).............................................................5.04(i), 2.06
316(b)......................................................................5.03
316(c)......................................................................2.02
317(a)..............................................................Inapplicable
317(b)..............................................................Inapplicable
318(a)...................................................................2.01(b)
318(b)......................................................................2.01
318(c)...................................................................2.01(a)
- ------------------------
* This Cross-Reference Table does not constitute part of the Guarantee Agreement
and shall not affect the interpretation of any of its terms or provisions.
<PAGE> 5
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of
_________, 1999 is executed and delivered by SEMCO ENERGY, INC., a Michigan
corporation (the "Guarantor"), and Bank One Trust Company, NA, a national
banking association, as trustee (the "Trustee"), for the benefit of the Holders
(as defined herein) from time to time of the Trust Preferred Securities (as
defined herein) of SEMCO CAPITAL TRUST I, a Delaware statutory business trust
(the "Trust ").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of _______________, 1999, among the Trustee,
the other Trustees named therein, and SEMCO Energy, Inc., as Depositor, and the
holders of undivided beneficial interests in the assets of the Trust, the Trust
is issuing as of the date hereof $___________ aggregate liquidation amount of
its _____% Trust Originated Trust Preferred Securities (the "Trust Preferred
Securities") representing preferred undivided beneficial interests in the assets
of the Trust and having the terms set forth in the Trust Agreement;
WHEREAS, the Trust Preferred Securities will be issued by the
Trust and the proceeds thereof will be used to purchase Subordinated Debentures
(as defined in the Trust Agreement) of the Guarantor, which will be held by the
Trust as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Trust
Preferred Securities, the Guarantor desires to irrevocably and unconditionally
agree, to the extent set forth herein, to pay to the Holders the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the payment for Trust
Preferred Securities by each Holder thereof, which payment the Guarantor hereby
agrees shall benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to time of the
Trust Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
<PAGE> 6
"Event of Default" means a failure by the Guarantor to perform
any of its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Trust Preferred
Securities, to the extent not paid or made by or on behalf of the Trust: (i) any
accrued and unpaid distributions that are required to be paid on such Trust
Preferred Securities but if and only if and to the extent the Trust has funds
legally and immediately available therefor to make such payment; (ii) the
redemption price, including all accrued and unpaid distributions to the date of
redemption (the "Redemption Price"), with respect to the Trust Preferred
Securities called for redemption by the Trust but if and only if and to the
extent that the Trust has funds legally and immediately available therefor
sufficient to make such payment; and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than in connection
with the distribution of Subordinated Debentures to the holders of Trust
Securities or the redemption of all of the Trust Preferred Securities), the
lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid
distributions on the Trust Preferred Securities to the date of payment, to the
extent the Trust has funds legally and immediately available therefor, and (b)
the amount of assets of the Trust remaining available for distribution to
Holders in liquidation of the Trust (in either case, the "Liquidation
Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Trust, of any Trust Preferred Securities; provided, however, that
in determining whether the holders of the requisite percentage of Trust
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indenture" means the Subordinated Indenture, dated as of
________ __, 199__, among the Guarantor, as issuer, and Bank One Trust Company,
NA, as trustee, as supplemented by the First Supplemental Indenture dated as of
_______________, 1999, by and between the Guarantor and Bank One Trust Company,
NA, as trustee.
"Majority in liquidation amount of Trust Preferred Securities"
means a vote by Holder(s) of Trust Preferred Securities, voting separately as a
class, of more than 50% of the liquidation amount of all Trust Preferred
Securities outstanding at the time of determination.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, and delivered to the Trustee. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
the Officers' Certificate are based;
(c) a statement that, in the opinion of each such officer, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
-2-
<PAGE> 7
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the Trustee, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Senior Trust Officer,
Trust Officer or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Successor Trustee" means a successor Trustee possessing the
qualifications to act as Trustee under Section 4.01.
"Trust Common Securities" means the securities representing
common undivided beneficial interests in the assets of the Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Securities" means the Trust Preferred Securities and
the Trust Common Securities.
"Trustee" means Bank One Trust Company, NA until a Successor
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement and thereafter means each such Successor
Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Guarantee Agreement
and shall, to the extent applicable, be governed by such provisions; and
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.02. Lists of Holders of Securities.
(a) The Guarantor shall furnish or cause to be furnished to
the Trustee (a) semiannually, not later than June 1 and December 1 in each year,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not more than 15 days
prior to the time such list is furnished, and (b) at such other times as the
-3-
<PAGE> 8
Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than 15
days prior to the time such list is furnished; provided that, the Guarantor
shall not be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the
Trustee by the Guarantor or at any time the Trustee is the Securities Registrar
under the Trust Agreement. The Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Trustee
Within 60 days after May 15 of each year commencing May 15,
2000, the Trustee shall provide to the Holders of the Trust Preferred Securities
such reports as are required by Section 313(a) of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Trustee shall also comply with the other requirements of
Section 313 of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Trustee
The Guarantor shall provide to the Trustee such documents,
reports and information as required by Section 314 of the Trust Indenture Act
(if any) in the form, in the manner and at the times required by Section 314 of
the Trust Indenture Act, and shall provide, within 120 days after the end of
each fiscal year of the Guarantor, the compliance certificate required by
Section 314(a)(4) of the Trust Indenture Act in the form and in the manner
required by such Section.
SECTION 2.05. Evidence of Compliance with Conditions
Precedent
The Guarantor shall provide to the Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
Agreement that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.06. Events of Default; Waiver
The Holders of a Majority in liquidation amount of Trust
Preferred Securities may, by vote, on behalf of all of the Holders, waive any
past Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured and not to have existed, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 2.07. Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence of
an Event of Default actually known to the Trustee, transmit by mail, first class
postage prepaid, to the Holders, notices of all such Events of Default, unless
such defaults have been cured before the giving of such notice,
-4-
<PAGE> 9
provided that the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
(b) The Trustee shall not be deemed to have knowledge of any
Event of Default unless the Trustee shall have received written notice, or a
Responsible Officer charged with the administration of the Trust Agreement shall
have obtained written notice, of such Event of Default.
SECTION 2.08. Conflicting Interests
The Trust Agreement shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01. Powers and Duties of the Trustee.
(a) This Guarantee Agreement shall be held by the Trustee for
the benefit of the Holders, and the Trustee shall not transfer this Guarantee
Agreement to any Person except the Trustee shall assign rights hereunder to a
Holder to the extent such assignment is necessary to exercise such Holder's
rights pursuant to Section 5.04 or to a Successor Trustee upon acceptance by
such Successor Trustee of its appointment to act as Successor Trustee. The
right, title and interest of the Trustee shall automatically vest in any
Successor Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Trustee.
(b) If an Event of Default has occurred and is continuing, the
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Trustee, before the occurrence of any Event of Default
and after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06), the
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
-5-
<PAGE> 10
(A) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Guarantee Agreement, and the Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Guarantee Agreement;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a Majority in liquidation amount
of the Trust Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 3.02. Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Guarantee
Agreement, the Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers'
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<PAGE> 11
Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor;
(iv) the Trustee may consult with counsel of its choice, and
the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion; such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees; the Trustee shall have the right at any
time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have
provided to the Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the Trustee, against the
costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Trustee; provided that nothing contained in this Section 3.02(a)(v)
shall be taken to relieve the Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Guarantee Agreement;
(vi) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(viii) whenever in the administration of this Guarantee
Agreement the Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Trustee (i) may request instructions from the
Holders, (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.
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the 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 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 Trustee shall be construed to be
a duty.
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<PAGE> 12
SECTION 3.03. Compensation; Fees; Indemnity.
The Guarantor agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee 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 Trustee upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of
this Guarantee 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 indemnify the Trustee for, and to hold the Trustee
harmless against, any and all loss, damage, claims, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
The provisions of this Section 3.03 shall survive the
termination of this Guarantee Agreement or the registration or removal of the
Trustee.
ARTICLE IV
TRUSTEE
SECTION 4.01. Trustee; Eligibility.
(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.01(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Trustee shall cease to be eligible to
so act under Section 4.01(a), the Trustee shall immediately resign in the manner
and with the effect set out in Section 4.02(c).
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<PAGE> 13
(c) If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee and Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act, subject to the rights of the Trustee
under the penultimate paragraph thereof.
SECTION 4.02. Appointment, Removal and Resignation of Trustee.
(a) Subject to Section 4.02(b), the Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Trustee shall not be removed until a Successor Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Trustee and delivered to the Guarantor.
(c) The Trustee appointed to office shall hold office until a
Successor Trustee shall have been appointed or until its removal or resignation.
The Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Trustee and delivered to
the Guarantor, which resignation shall not take effect until a Successor Trustee
has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Trustee and delivered to the Guarantor and the
resigning Trustee.
(d) If no Successor Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning Trustee
may petition any court of competent jurisdiction for appointment of a Successor
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Trust), as and when due, regardless of
any defense, right of set-off or counterclaim which the Guarantor may have or
assert against any person. The Guarantor's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Trust to pay such amounts to the
Holders.
SECTION 5.02. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Trust or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
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<PAGE> 14
SECTION 5.03. Obligations Not Affected
The obligation of the Guarantor to make the Guarantee Payments
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Trust of any express or implied
agreement, covenant, term or condition relating to the Trust Preferred
Securities to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all
or any portion of the Distributions, Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Trust Preferred Securities or
the extension of time for the performance of any other obligation under, arising
out of, or in connection with, the Trust Preferred Securities (other than an
extension of time for payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the extension of any
interest payment period on the Subordinated Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the Trust Preferred
Securities, or any action on the part of the Trust granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Trust or any of the
assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the Trust
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.03 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Trustee to be held for the benefit of the
Holders; (ii) the Trustee has the right to enforce this Guarantee Agreement on
behalf of the Holders; (iii) the Holders of a Majority in liquidation amount of
the Trust Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee in
respect of this Guarantee Agreement or to direct the exercise of any trust or
power conferred upon the Trustee
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<PAGE> 15
under this Guarantee Agreement, provided that such direction shall not be in
conflict with any rule of law or with this Guarantee Agreement, and could not
involve the Trustee in personal liability in circumstances where reasonable
indemnity would not be adequate; and (iv) any Holder may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Guarantee Agreement, without first instituting a legal proceeding against or
requesting or directing that action be taken by the Trustee or any other person;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Guarantee Agreement to affect, disturb or prejudice the rights
of any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Guarantee Agreement, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 5.05. Guarantee of Payment
This Guarantee Agreement creates a guarantee of payment and
not of collection. This Guarantee Agreement will not be discharged except by
payment of the Guarantee Payments in full (without duplication) or upon the
distribution of Subordinated Debentures to the Holders in exchange for all of
the Trust Preferred Securities.
SECTION 5.06. Subrogation
The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Trust in respect of any amounts paid to the Holders by
the Guarantor under this Guarantee Agreement; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if, at the time of any
such payment, any amounts of Guarantee Payments are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.07. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Trust Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.01. Subordination
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of
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<PAGE> 16
the Guarantor, including the Subordinated Debentures, except those obligations
or liabilities made pari passu or subordinate by their terms, (ii) pari passu
with the most senior preferred stock now or hereafter issued or guaranteed by
the Guarantor, and (iii) senior to all common stock of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination
This Guarantee Agreement shall terminate and be of no further
force and effect upon: (i) full payment of the Redemption Price of all Trust
Preferred Securities, (ii) the distribution of Subordinated Debentures to the
Holders in exchange for all of the Trust Preferred Securities, or (iii) full
payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Trust. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid with respect
to Trust Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Successors and Assigns
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
then outstanding. Except in connection with a consolidation, merger, conveyance,
transfer, or lease involving the Guarantor that is permitted under Article Eight
of the Indenture, the Guarantor shall not assign its obligations hereunder.
SECTION 8.02. Amendments
Except with respect to any changes which do not materially and
adversely affect the rights of Holders (in which case no consent of Holders will
be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than 66-2/3% in liquidation amount of all
the outstanding Trust Preferred Securities. The provisions of Article Six of the
Trust Agreement concerning meetings of Holders shall apply to the giving of such
approval.
SECTION 8.03. Notices
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the Trustee and the
Holders:
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<PAGE> 17
SEMCO Energy, Inc.
405 Water Street
Port Huron, Michigan 48060
Attn: ___________________
(b) if given to the Trust, in care of the Trustee, or to the
Trustee at the Trust's (and the Trustee's) address set forth below or such other
address as the Trustee on behalf of the Trust may give notice of to the Holders:
SEMCO Capital Trust I
c/o [______________________]
with a copy, in the case of a notice to the Trust (other than a notice from the
Guarantor), to the Guarantor.
(c) if given to any Holder, at the address set forth on the
books and records of the Trust.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 8.04. Benefit
This Guarantee Agreement is solely for the benefit of the
Holders and, subject to Section 3.01(a), is not separately transferable from the
Trust Preferred Securities.
SECTION 8.05. Interpretation
In this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to them in
Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
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<PAGE> 18
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 8.06. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY COURT IN THE
STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK IN ANY ACTION, SUIT
OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS
GUARANTEE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY, AND TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE GUARANTOR HEREBY WAIVES AND AGREES NOT TO
ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT
THIS GUARANTEE AGREEMENT OR ANY DOCUMENT OR ANY INSTRUMENT REFERRED TO HEREIN OR
THE SUBJECT MATTER HEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURTS. THE
GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR
REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET FORTH IN THIS GUARANTEE AGREEMENT
OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW YORK.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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<PAGE> 19
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
SEMCO ENERGY, INC.
By:
--------------------------------------
Name:
Title:
BANK ONE TRUST COMPANY, NA
as Trustee
By:
--------------------------------------
Name:
Title:
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<PAGE> 1
EXHIBIT 4.16
GUARANTEE AGREEMENT
Between
SEMCO ENERGY, INC.
(as Guarantor)
and
BANK ONE TRUST COMPANY, NA
(as Trustee)
Dated as of ________________, 1999
<PAGE> 2
TABLE OF CONTENTS*
Page
ARTICLE I DEFINITIONS....................................................1
SECTION 1.01. Definitions...........................................1
ARTICLE II TRUST INDENTURE ACT...........................................3
SECTION 2.01. Trust Indenture Act; Application......................3
SECTION 2.02. Lists of Holders of Securities........................3
SECTION 2.03. Reports by the Trustee................................4
SECTION 2.04. Periodic Reports to Trustee...........................4
SECTION 2.05. Evidence of Compliance with Conditions Precedent......4
SECTION 2.06. Events of Default; Waiver.............................4
SECTION 2.07. Event of Default; Notice..............................4
SECTION 2.08. Conflicting Interests.................................5
ARTICLE III POWERS, DUTIES AND RIGHTS OF TRUSTEE.........................5
SECTION 3.01. Powers and Duties of the Trustee......................5
SECTION 3.02. Certain Rights of Trustee.............................6
SECTION 3.03. Compensation; Fees; Indemnity.........................8
ARTICLE IV TRUSTEE.......................................................8
SECTION 4.01. Trustee; Eligibility..................................8
SECTION 4.02. Appointment, Removal and Resignation of Trustee.......9
ARTICLE V GUARANTEE......................................................9
SECTION 5.01. Guarantee.............................................9
SECTION 5.02. Waiver of Notice and Demand...........................9
SECTION 5.03. Obligations Not Affected..............................10
SECTION 5.04. Rights of Holders.....................................10
SECTION 5.05. Guarantee of Payment..................................11
SECTION 5.06. Subrogation...........................................11
SECTION 5.07. Independent Obligations...............................11
ARTICLE VI SUBORDINATION................................................11
SECTION 6.01. Subordination.........................................11
- ----------------------------
* This Table of Contents does not constitute part of the Indenture or have any
bearing upon the interpretation of any of its terms and provisions.
i
<PAGE> 3
ARTICLE VII TERMINATION..................................................12
SECTION 7.01. Termination...........................................12
ARTICLE VIII MISCELLANEOUS...............................................12
SECTION 8.01. Successors and Assigns................................12
SECTION 8.02. Amendments............................................12
SECTION 8.03. Notices...............................................12
SECTION 8.04. Benefit...............................................13
SECTION 8.05. Interpretation........................................13
SECTION 8.06. Governing Law.........................................14
ii
<PAGE> 4
CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a)...................................................................4.01(a)
310(b).............................................................4.01(c), 2.08
310(c)..............................................................Inapplicable
311(a)...................................................................2.02(b)
311(b)...................................................................2.02(b)
311(c)..............................................................Inapplicable
312(a)...................................................................2.02(a)
312(b)...................................................................2.02(b)
313.........................................................................2.03
314(a)......................................................................2.04
314(b)..............................................................Inapplicable
314(c)......................................................................2.05
314(d)..............................................................Inapplicable
314(e)..........................................................1.01, 2.05, 3.02
314(f)................................................................2.01, 3.02
315(a)...................................................................3.01(d)
315(b)......................................................................2.07
315(c)......................................................................3.01
315(d)...................................................................3.01(d)
315(e)..............................................................Inapplicable
316(a).............................................................5.04(i), 2.06
316(b)......................................................................5.03
316(c)......................................................................2.02
317(a)..............................................................Inapplicable
317(b)..............................................................Inapplicable
318(a)...................................................................2.01(b)
318(b)......................................................................2.01
318(c)...................................................................2.01(a)
- ------------------------
* This Cross-Reference Table does not constitute part of the Guarantee Agreement
and shall not affect the interpretation of any of its terms or provisions.
<PAGE> 5
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of
_________, 1999 is executed and delivered by SEMCO ENERGY, INC., a Michigan
corporation (the "Guarantor"), and Bank One Trust Company, NA, a national
banking association, as trustee (the "Trustee"), for the benefit of the Holders
(as defined herein) from time to time of the Trust Preferred Securities (as
defined herein) of SEMCO CAPITAL TRUST II, a Delaware statutory business trust
(the "Trust ").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of _______________, 1999, among the Trustee,
the other Trustees named therein, and SEMCO Energy, Inc., as Depositor, and the
holders of undivided beneficial interests in the assets of the Trust, the Trust
is issuing as of the date hereof $___________ aggregate liquidation amount of
its _____% Trust Originated Trust Preferred Securities (the "Trust Preferred
Securities") representing preferred undivided beneficial interests in the assets
of the Trust and having the terms set forth in the Trust Agreement;
WHEREAS, the Trust Preferred Securities will be issued by the
Trust and the proceeds thereof will be used to purchase Subordinated Debentures
(as defined in the Trust Agreement) of the Guarantor, which will be held by the
Trust as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Trust
Preferred Securities, the Guarantor desires to irrevocably and unconditionally
agree, to the extent set forth herein, to pay to the Holders the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the payment for Trust
Preferred Securities by each Holder thereof, which payment the Guarantor hereby
agrees shall benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to time of the
Trust Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
<PAGE> 6
"Event of Default" means a failure by the Guarantor to perform
any of its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Trust Preferred
Securities, to the extent not paid or made by or on behalf of the Trust: (i) any
accrued and unpaid distributions that are required to be paid on such Trust
Preferred Securities but if and only if and to the extent the Trust has funds
legally and immediately available therefor to make such payment; (ii) the
redemption price, including all accrued and unpaid distributions to the date of
redemption (the "Redemption Price"), with respect to the Trust Preferred
Securities called for redemption by the Trust but if and only if and to the
extent that the Trust has funds legally and immediately available therefor
sufficient to make such payment; and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than in connection
with the distribution of Subordinated Debentures to the holders of Trust
Securities or the redemption of all of the Trust Preferred Securities), the
lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid
distributions on the Trust Preferred Securities to the date of payment, to the
extent the Trust has funds legally and immediately available therefor, and (b)
the amount of assets of the Trust remaining available for distribution to
Holders in liquidation of the Trust (in either case, the "Liquidation
Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Trust, of any Trust Preferred Securities; provided, however, that
in determining whether the holders of the requisite percentage of Trust
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indenture" means the Subordinated Indenture, dated as of
________ __, 199__, among the Guarantor, as issuer, and Bank One Trust Company,
NA, as trustee, as supplemented by the First Supplemental Indenture dated as of
_______________, 1999, by and between the Guarantor and Bank One Trust Company,
NA, as trustee.
"Majority in liquidation amount of Trust Preferred Securities"
means a vote by Holder(s) of Trust Preferred Securities, voting separately as a
class, of more than 50% of the liquidation amount of all Trust Preferred
Securities outstanding at the time of determination.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, and delivered to the Trustee. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
the Officers' Certificate are based;
(c) a statement that, in the opinion of each such officer, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
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(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the Trustee, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Senior Trust Officer,
Trust Officer or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Successor Trustee" means a successor Trustee possessing the
qualifications to act as Trustee under Section 4.01.
"Trust Common Securities" means the securities representing
common undivided beneficial interests in the assets of the Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Securities" means the Trust Preferred Securities and
the Trust Common Securities.
"Trustee" means Bank One Trust Company, NA until a Successor
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement and thereafter means each such Successor
Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Guarantee Agreement
and shall, to the extent applicable, be governed by such provisions; and
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.02. Lists of Holders of Securities.
(a) The Guarantor shall furnish or cause to be furnished to
the Trustee (a) semiannually, not later than June 1 and December 1 in each year,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not more than 15 days
prior to the time such list is furnished, and (b) at such other times as the
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Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than 15
days prior to the time such list is furnished; provided that, the Guarantor
shall not be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the
Trustee by the Guarantor or at any time the Trustee is the Securities Registrar
under the Trust Agreement. The Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Trustee
Within 60 days after May 15 of each year commencing May 15,
2000, the Trustee shall provide to the Holders of the Trust Preferred Securities
such reports as are required by Section 313(a) of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Trustee shall also comply with the other requirements of
Section 313 of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Trustee
The Guarantor shall provide to the Trustee such documents,
reports and information as required by Section 314 of the Trust Indenture Act
(if any) in the form, in the manner and at the times required by Section 314 of
the Trust Indenture Act, and shall provide, within 120 days after the end of
each fiscal year of the Guarantor, the compliance certificate required by
Section 314(a)(4) of the Trust Indenture Act in the form and in the manner
required by such Section.
SECTION 2.05. Evidence of Compliance with Conditions
Precedent
The Guarantor shall provide to the Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
Agreement that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.06. Events of Default; Waiver
The Holders of a Majority in liquidation amount of Trust
Preferred Securities may, by vote, on behalf of all of the Holders, waive any
past Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured and not to have existed, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 2.07. Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence of
an Event of Default actually known to the Trustee, transmit by mail, first class
postage prepaid, to the Holders, notices of all such Events of Default, unless
such defaults have been cured before the giving of such notice,
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provided that the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
(b) The Trustee shall not be deemed to have knowledge of any
Event of Default unless the Trustee shall have received written notice, or a
Responsible Officer charged with the administration of the Trust Agreement shall
have obtained written notice, of such Event of Default.
SECTION 2.08. Conflicting Interests
The Trust Agreement shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01. Powers and Duties of the Trustee.
(a) This Guarantee Agreement shall be held by the Trustee for
the benefit of the Holders, and the Trustee shall not transfer this Guarantee
Agreement to any Person except the Trustee shall assign rights hereunder to a
Holder to the extent such assignment is necessary to exercise such Holder's
rights pursuant to Section 5.04 or to a Successor Trustee upon acceptance by
such Successor Trustee of its appointment to act as Successor Trustee. The
right, title and interest of the Trustee shall automatically vest in any
Successor Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Trustee.
(b) If an Event of Default has occurred and is continuing, the
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Trustee, before the occurrence of any Event of Default
and after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06), the
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
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(A) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Guarantee Agreement, and the Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Guarantee Agreement;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a Majority in liquidation amount
of the Trust Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 3.02. Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Guarantee
Agreement, the Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers'
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Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor;
(iv) the Trustee may consult with counsel of its choice, and
the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion; such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees; the Trustee shall have the right at any
time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have
provided to the Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the Trustee, against the
costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Trustee; provided that nothing contained in this Section 3.02(a)(v)
shall be taken to relieve the Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Guarantee Agreement;
(vi) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(viii) whenever in the administration of this Guarantee
Agreement the Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Trustee (i) may request instructions from the
Holders, (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.
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the 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 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 Trustee shall be construed to be
a duty.
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SECTION 3.03. Compensation; Fees; Indemnity.
The Guarantor agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee 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 Trustee upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of
this Guarantee 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 indemnify the Trustee for, and to hold the Trustee
harmless against, any and all loss, damage, claims, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
The provisions of this Section 3.03 shall survive the
termination of this Guarantee Agreement or the registration or removal of the
Trustee.
ARTICLE IV
TRUSTEE
SECTION 4.01. Trustee; Eligibility.
(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.01(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Trustee shall cease to be eligible to
so act under Section 4.01(a), the Trustee shall immediately resign in the manner
and with the effect set out in Section 4.02(c).
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(c) If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee and Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act, subject to the rights of the Trustee
under the penultimate paragraph thereof.
SECTION 4.02. Appointment, Removal and Resignation of Trustee.
(a) Subject to Section 4.02(b), the Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Trustee shall not be removed until a Successor Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Trustee and delivered to the Guarantor.
(c) The Trustee appointed to office shall hold office until a
Successor Trustee shall have been appointed or until its removal or resignation.
The Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Trustee and delivered to
the Guarantor, which resignation shall not take effect until a Successor Trustee
has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Trustee and delivered to the Guarantor and the
resigning Trustee.
(d) If no Successor Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning Trustee
may petition any court of competent jurisdiction for appointment of a Successor
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Trust), as and when due, regardless of
any defense, right of set-off or counterclaim which the Guarantor may have or
assert against any person. The Guarantor's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Trust to pay such amounts to the
Holders.
SECTION 5.02. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Trust or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
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SECTION 5.03. Obligations Not Affected
The obligation of the Guarantor to make the Guarantee Payments
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Trust of any express or implied
agreement, covenant, term or condition relating to the Trust Preferred
Securities to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all
or any portion of the Distributions, Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Trust Preferred Securities or
the extension of time for the performance of any other obligation under, arising
out of, or in connection with, the Trust Preferred Securities (other than an
extension of time for payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the extension of any
interest payment period on the Subordinated Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the Trust Preferred
Securities, or any action on the part of the Trust granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Trust or any of the
assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the Trust
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.03 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Trustee to be held for the benefit of the
Holders; (ii) the Trustee has the right to enforce this Guarantee Agreement on
behalf of the Holders; (iii) the Holders of a Majority in liquidation amount of
the Trust Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee in
respect of this Guarantee Agreement or to direct the exercise of any trust or
power conferred upon the Trustee
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under this Guarantee Agreement, provided that such direction shall not be in
conflict with any rule of law or with this Guarantee Agreement, and could not
involve the Trustee in personal liability in circumstances where reasonable
indemnity would not be adequate; and (iv) any Holder may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Guarantee Agreement, without first instituting a legal proceeding against or
requesting or directing that action be taken by the Trustee or any other person;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Guarantee Agreement to affect, disturb or prejudice the rights
of any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Guarantee Agreement, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 5.05. Guarantee of Payment
This Guarantee Agreement creates a guarantee of payment and
not of collection. This Guarantee Agreement will not be discharged except by
payment of the Guarantee Payments in full (without duplication) or upon the
distribution of Subordinated Debentures to the Holders in exchange for all of
the Trust Preferred Securities.
SECTION 5.06. Subrogation
The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Trust in respect of any amounts paid to the Holders by
the Guarantor under this Guarantee Agreement; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if, at the time of any
such payment, any amounts of Guarantee Payments are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.07. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Trust Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.01. Subordination
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of
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the Guarantor, including the Subordinated Debentures, except those obligations
or liabilities made pari passu or subordinate by their terms, (ii) pari passu
with the most senior preferred stock now or hereafter issued or guaranteed by
the Guarantor, and (iii) senior to all common stock of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination
This Guarantee Agreement shall terminate and be of no further
force and effect upon: (i) full payment of the Redemption Price of all Trust
Preferred Securities, (ii) the distribution of Subordinated Debentures to the
Holders in exchange for all of the Trust Preferred Securities, or (iii) full
payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Trust. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid with respect
to Trust Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Successors and Assigns
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
then outstanding. Except in connection with a consolidation, merger, conveyance,
transfer, or lease involving the Guarantor that is permitted under Article Eight
of the Indenture, the Guarantor shall not assign its obligations hereunder.
SECTION 8.02. Amendments
Except with respect to any changes which do not materially and
adversely affect the rights of Holders (in which case no consent of Holders will
be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than 66-2/3% in liquidation amount of all
the outstanding Trust Preferred Securities. The provisions of Article Six of the
Trust Agreement concerning meetings of Holders shall apply to the giving of such
approval.
SECTION 8.03. Notices
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the Trustee and the
Holders:
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SEMCO Energy, Inc.
405 Water Street
Port Huron, Michigan 48060
Attn: ___________________
(b) if given to the Trust, in care of the Trustee, or to the
Trustee at the Trust's (and the Trustee's) address set forth below or such other
address as the Trustee on behalf of the Trust may give notice of to the Holders:
SEMCO Capital Trust II
c/o [______________________]
with a copy, in the case of a notice to the Trust (other than a notice from the
Guarantor), to the Guarantor.
(c) if given to any Holder, at the address set forth on the
books and records of the Trust.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 8.04. Benefit
This Guarantee Agreement is solely for the benefit of the
Holders and, subject to Section 3.01(a), is not separately transferable from the
Trust Preferred Securities.
SECTION 8.05. Interpretation
In this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to them in
Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
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(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 8.06. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY COURT IN THE
STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK IN ANY ACTION, SUIT
OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS
GUARANTEE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY, AND TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE GUARANTOR HEREBY WAIVES AND AGREES NOT TO
ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT
THIS GUARANTEE AGREEMENT OR ANY DOCUMENT OR ANY INSTRUMENT REFERRED TO HEREIN OR
THE SUBJECT MATTER HEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURTS. THE
GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR
REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET FORTH IN THIS GUARANTEE AGREEMENT
OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW YORK.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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<PAGE> 19
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
SEMCO ENERGY, INC.
By:
--------------------------------------
Name:
Title:
BANK ONE TRUST COMPANY, NA
as Trustee
By:
--------------------------------------
Name:
Title:
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<PAGE> 1
EXHIBIT 4.17
GUARANTEE AGREEMENT
Between
SEMCO ENERGY, INC.
(as Guarantor)
and
BANK ONE TRUST COMPANY, NA
(as Trustee)
Dated as of ________________, 1999
<PAGE> 2
TABLE OF CONTENTS*
Page
ARTICLE I DEFINITIONS....................................................1
SECTION 1.01. Definitions...........................................1
ARTICLE II TRUST INDENTURE ACT...........................................3
SECTION 2.01. Trust Indenture Act; Application......................3
SECTION 2.02. Lists of Holders of Securities........................3
SECTION 2.03. Reports by the Trustee................................4
SECTION 2.04. Periodic Reports to Trustee...........................4
SECTION 2.05. Evidence of Compliance with Conditions Precedent......4
SECTION 2.06. Events of Default; Waiver.............................4
SECTION 2.07. Event of Default; Notice..............................4
SECTION 2.08. Conflicting Interests.................................5
ARTICLE III POWERS, DUTIES AND RIGHTS OF TRUSTEE.........................5
SECTION 3.01. Powers and Duties of the Trustee......................5
SECTION 3.02. Certain Rights of Trustee.............................6
SECTION 3.03. Compensation; Fees; Indemnity.........................8
ARTICLE IV TRUSTEE.......................................................8
SECTION 4.01. Trustee; Eligibility..................................8
SECTION 4.02. Appointment, Removal and Resignation of Trustee.......9
ARTICLE V GUARANTEE......................................................9
SECTION 5.01. Guarantee.............................................9
SECTION 5.02. Waiver of Notice and Demand...........................9
SECTION 5.03. Obligations Not Affected..............................10
SECTION 5.04. Rights of Holders.....................................10
SECTION 5.05. Guarantee of Payment..................................11
SECTION 5.06. Subrogation...........................................11
SECTION 5.07. Independent Obligations...............................11
ARTICLE VI SUBORDINATION................................................11
SECTION 6.01. Subordination.........................................11
- ----------------------------
* This Table of Contents does not constitute part of the Indenture or have any
bearing upon the interpretation of any of its terms and provisions.
i
<PAGE> 3
ARTICLE VII TERMINATION..................................................12
SECTION 7.01. Termination...........................................12
ARTICLE VIII MISCELLANEOUS...............................................12
SECTION 8.01. Successors and Assigns................................12
SECTION 8.02. Amendments............................................12
SECTION 8.03. Notices...............................................12
SECTION 8.04. Benefit...............................................13
SECTION 8.05. Interpretation........................................13
SECTION 8.06. Governing Law.........................................14
ii
<PAGE> 4
CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a)...................................................................4.01(a)
310(b).............................................................4.01(c), 2.08
310(c)..............................................................Inapplicable
311(a)...................................................................2.02(b)
311(b)...................................................................2.02(b)
311(c)..............................................................Inapplicable
312(a)...................................................................2.02(a)
312(b)...................................................................2.02(b)
313.........................................................................2.03
314(a)......................................................................2.04
314(b)..............................................................Inapplicable
314(c)......................................................................2.05
314(d)..............................................................Inapplicable
314(e)..........................................................1.01, 2.05, 3.02
314(f)................................................................2.01, 3.02
315(a)...................................................................3.01(d)
315(b)......................................................................2.07
315(c)......................................................................3.01
315(d)...................................................................3.01(d)
315(e)..............................................................Inapplicable
316(a).............................................................5.04(i), 2.06
316(b)......................................................................5.03
316(c)......................................................................2.02
317(a)..............................................................Inapplicable
317(b)..............................................................Inapplicable
318(a)...................................................................2.01(b)
318(b)......................................................................2.01
318(c)...................................................................2.01(a)
- ------------------------
* This Cross-Reference Table does not constitute part of the Guarantee Agreement
and shall not affect the interpretation of any of its terms or provisions.
<PAGE> 5
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of
_________, 1999 is executed and delivered by SEMCO ENERGY, INC., a Michigan
corporation (the "Guarantor"), and Bank One Trust Company, NA, a national
banking association, as trustee (the "Trustee"), for the benefit of the Holders
(as defined herein) from time to time of the Trust Preferred Securities (as
defined herein) of SEMCO CAPITAL TRUST III, a Delaware statutory business trust
(the "Trust ").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of _______________, 1999, among the Trustee,
the other Trustees named therein, and SEMCO Energy, Inc., as Depositor, and the
holders of undivided beneficial interests in the assets of the Trust, the Trust
is issuing as of the date hereof $___________ aggregate liquidation amount of
its _____% Trust Originated Trust Preferred Securities (the "Trust Preferred
Securities") representing preferred undivided beneficial interests in the assets
of the Trust and having the terms set forth in the Trust Agreement;
WHEREAS, the Trust Preferred Securities will be issued by the
Trust and the proceeds thereof will be used to purchase Subordinated Debentures
(as defined in the Trust Agreement) of the Guarantor, which will be held by the
Trust as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Trust
Preferred Securities, the Guarantor desires to irrevocably and unconditionally
agree, to the extent set forth herein, to pay to the Holders the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the payment for Trust
Preferred Securities by each Holder thereof, which payment the Guarantor hereby
agrees shall benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to time of the
Trust Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
<PAGE> 6
"Event of Default" means a failure by the Guarantor to perform
any of its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Trust Preferred
Securities, to the extent not paid or made by or on behalf of the Trust: (i) any
accrued and unpaid distributions that are required to be paid on such Trust
Preferred Securities but if and only if and to the extent the Trust has funds
legally and immediately available therefor to make such payment; (ii) the
redemption price, including all accrued and unpaid distributions to the date of
redemption (the "Redemption Price"), with respect to the Trust Preferred
Securities called for redemption by the Trust but if and only if and to the
extent that the Trust has funds legally and immediately available therefor
sufficient to make such payment; and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than in connection
with the distribution of Subordinated Debentures to the holders of Trust
Securities or the redemption of all of the Trust Preferred Securities), the
lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid
distributions on the Trust Preferred Securities to the date of payment, to the
extent the Trust has funds legally and immediately available therefor, and (b)
the amount of assets of the Trust remaining available for distribution to
Holders in liquidation of the Trust (in either case, the "Liquidation
Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Trust, of any Trust Preferred Securities; provided, however, that
in determining whether the holders of the requisite percentage of Trust
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indenture" means the Subordinated Indenture, dated as of
________ __, 199__, among the Guarantor, as issuer, and Bank One Trust Company,
NA, as trustee, as supplemented by the First Supplemental Indenture dated as of
_______________, 1999, by and between the Guarantor and Bank One Trust Company,
NA, as trustee.
"Majority in liquidation amount of Trust Preferred Securities"
means a vote by Holder(s) of Trust Preferred Securities, voting separately as a
class, of more than 50% of the liquidation amount of all Trust Preferred
Securities outstanding at the time of determination.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, and delivered to the Trustee. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
the Officers' Certificate are based;
(c) a statement that, in the opinion of each such officer, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
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<PAGE> 7
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the Trustee, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Senior Trust Officer,
Trust Officer or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Successor Trustee" means a successor Trustee possessing the
qualifications to act as Trustee under Section 4.01.
"Trust Common Securities" means the securities representing
common undivided beneficial interests in the assets of the Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Securities" means the Trust Preferred Securities and
the Trust Common Securities.
"Trustee" means Bank One Trust Company, NA until a Successor
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement and thereafter means each such Successor
Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Guarantee Agreement
and shall, to the extent applicable, be governed by such provisions; and
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.02. Lists of Holders of Securities.
(a) The Guarantor shall furnish or cause to be furnished to
the Trustee (a) semiannually, not later than June 1 and December 1 in each year,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not more than 15 days
prior to the time such list is furnished, and (b) at such other times as the
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<PAGE> 8
Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than 15
days prior to the time such list is furnished; provided that, the Guarantor
shall not be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the
Trustee by the Guarantor or at any time the Trustee is the Securities Registrar
under the Trust Agreement. The Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Trustee
Within 60 days after May 15 of each year commencing May 15,
2000, the Trustee shall provide to the Holders of the Trust Preferred Securities
such reports as are required by Section 313(a) of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Trustee shall also comply with the other requirements of
Section 313 of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Trustee
The Guarantor shall provide to the Trustee such documents,
reports and information as required by Section 314 of the Trust Indenture Act
(if any) in the form, in the manner and at the times required by Section 314 of
the Trust Indenture Act, and shall provide, within 120 days after the end of
each fiscal year of the Guarantor, the compliance certificate required by
Section 314(a)(4) of the Trust Indenture Act in the form and in the manner
required by such Section.
SECTION 2.05. Evidence of Compliance with Conditions
Precedent
The Guarantor shall provide to the Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
Agreement that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.06. Events of Default; Waiver
The Holders of a Majority in liquidation amount of Trust
Preferred Securities may, by vote, on behalf of all of the Holders, waive any
past Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured and not to have existed, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 2.07. Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence of
an Event of Default actually known to the Trustee, transmit by mail, first class
postage prepaid, to the Holders, notices of all such Events of Default, unless
such defaults have been cured before the giving of such notice,
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<PAGE> 9
provided that the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
(b) The Trustee shall not be deemed to have knowledge of any
Event of Default unless the Trustee shall have received written notice, or a
Responsible Officer charged with the administration of the Trust Agreement shall
have obtained written notice, of such Event of Default.
SECTION 2.08. Conflicting Interests
The Trust Agreement shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01. Powers and Duties of the Trustee.
(a) This Guarantee Agreement shall be held by the Trustee for
the benefit of the Holders, and the Trustee shall not transfer this Guarantee
Agreement to any Person except the Trustee shall assign rights hereunder to a
Holder to the extent such assignment is necessary to exercise such Holder's
rights pursuant to Section 5.04 or to a Successor Trustee upon acceptance by
such Successor Trustee of its appointment to act as Successor Trustee. The
right, title and interest of the Trustee shall automatically vest in any
Successor Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Trustee.
(b) If an Event of Default has occurred and is continuing, the
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Trustee, before the occurrence of any Event of Default
and after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06), the
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
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<PAGE> 10
(A) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Guarantee Agreement, and the Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Guarantee Agreement;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a Majority in liquidation amount
of the Trust Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 3.02. Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Guarantee
Agreement, the Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers'
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<PAGE> 11
Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor;
(iv) the Trustee may consult with counsel of its choice, and
the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion; such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees; the Trustee shall have the right at any
time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have
provided to the Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the Trustee, against the
costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Trustee; provided that nothing contained in this Section 3.02(a)(v)
shall be taken to relieve the Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Guarantee Agreement;
(vi) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(viii) whenever in the administration of this Guarantee
Agreement the Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Trustee (i) may request instructions from the
Holders, (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.
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the 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 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 Trustee shall be construed to be
a duty.
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<PAGE> 12
SECTION 3.03. Compensation; Fees; Indemnity.
The Guarantor agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee 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 Trustee upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of
this Guarantee 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 indemnify the Trustee for, and to hold the Trustee
harmless against, any and all loss, damage, claims, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
The provisions of this Section 3.03 shall survive the
termination of this Guarantee Agreement or the registration or removal of the
Trustee.
ARTICLE IV
TRUSTEE
SECTION 4.01. Trustee; Eligibility.
(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.01(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Trustee shall cease to be eligible to
so act under Section 4.01(a), the Trustee shall immediately resign in the manner
and with the effect set out in Section 4.02(c).
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<PAGE> 13
(c) If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee and Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act, subject to the rights of the Trustee
under the penultimate paragraph thereof.
SECTION 4.02. Appointment, Removal and Resignation of Trustee.
(a) Subject to Section 4.02(b), the Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Trustee shall not be removed until a Successor Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Trustee and delivered to the Guarantor.
(c) The Trustee appointed to office shall hold office until a
Successor Trustee shall have been appointed or until its removal or resignation.
The Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Trustee and delivered to
the Guarantor, which resignation shall not take effect until a Successor Trustee
has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Trustee and delivered to the Guarantor and the
resigning Trustee.
(d) If no Successor Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning Trustee
may petition any court of competent jurisdiction for appointment of a Successor
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Trust), as and when due, regardless of
any defense, right of set-off or counterclaim which the Guarantor may have or
assert against any person. The Guarantor's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Trust to pay such amounts to the
Holders.
SECTION 5.02. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Trust or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
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<PAGE> 14
SECTION 5.03. Obligations Not Affected
The obligation of the Guarantor to make the Guarantee Payments
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Trust of any express or implied
agreement, covenant, term or condition relating to the Trust Preferred
Securities to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all
or any portion of the Distributions, Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Trust Preferred Securities or
the extension of time for the performance of any other obligation under, arising
out of, or in connection with, the Trust Preferred Securities (other than an
extension of time for payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the extension of any
interest payment period on the Subordinated Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the Trust Preferred
Securities, or any action on the part of the Trust granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Trust or any of the
assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the Trust
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.03 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Trustee to be held for the benefit of the
Holders; (ii) the Trustee has the right to enforce this Guarantee Agreement on
behalf of the Holders; (iii) the Holders of a Majority in liquidation amount of
the Trust Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee in
respect of this Guarantee Agreement or to direct the exercise of any trust or
power conferred upon the Trustee
-10-
<PAGE> 15
under this Guarantee Agreement, provided that such direction shall not be in
conflict with any rule of law or with this Guarantee Agreement, and could not
involve the Trustee in personal liability in circumstances where reasonable
indemnity would not be adequate; and (iv) any Holder may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Guarantee Agreement, without first instituting a legal proceeding against or
requesting or directing that action be taken by the Trustee or any other person;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Guarantee Agreement to affect, disturb or prejudice the rights
of any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Guarantee Agreement, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 5.05. Guarantee of Payment
This Guarantee Agreement creates a guarantee of payment and
not of collection. This Guarantee Agreement will not be discharged except by
payment of the Guarantee Payments in full (without duplication) or upon the
distribution of Subordinated Debentures to the Holders in exchange for all of
the Trust Preferred Securities.
SECTION 5.06. Subrogation
The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Trust in respect of any amounts paid to the Holders by
the Guarantor under this Guarantee Agreement; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if, at the time of any
such payment, any amounts of Guarantee Payments are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.07. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Trust Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.01. Subordination
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of
-11-
<PAGE> 16
the Guarantor, including the Subordinated Debentures, except those obligations
or liabilities made pari passu or subordinate by their terms, (ii) pari passu
with the most senior preferred stock now or hereafter issued or guaranteed by
the Guarantor, and (iii) senior to all common stock of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination
This Guarantee Agreement shall terminate and be of no further
force and effect upon: (i) full payment of the Redemption Price of all Trust
Preferred Securities, (ii) the distribution of Subordinated Debentures to the
Holders in exchange for all of the Trust Preferred Securities, or (iii) full
payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Trust. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid with respect
to Trust Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Successors and Assigns
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
then outstanding. Except in connection with a consolidation, merger, conveyance,
transfer, or lease involving the Guarantor that is permitted under Article Eight
of the Indenture, the Guarantor shall not assign its obligations hereunder.
SECTION 8.02. Amendments
Except with respect to any changes which do not materially and
adversely affect the rights of Holders (in which case no consent of Holders will
be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than 66-2/3% in liquidation amount of all
the outstanding Trust Preferred Securities. The provisions of Article Six of the
Trust Agreement concerning meetings of Holders shall apply to the giving of such
approval.
SECTION 8.03. Notices
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the Trustee and the
Holders:
-12-
<PAGE> 17
SEMCO Energy, Inc.
405 Water Street
Port Huron, Michigan 48060
Attn: ___________________
(b) if given to the Trust, in care of the Trustee, or to the
Trustee at the Trust's (and the Trustee's) address set forth below or such other
address as the Trustee on behalf of the Trust may give notice of to the Holders:
SEMCO Capital Trust III
c/o [______________________]
with a copy, in the case of a notice to the Trust (other than a notice from the
Guarantor), to the Guarantor.
(c) if given to any Holder, at the address set forth on the
books and records of the Trust.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 8.04. Benefit
This Guarantee Agreement is solely for the benefit of the
Holders and, subject to Section 3.01(a), is not separately transferable from the
Trust Preferred Securities.
SECTION 8.05. Interpretation
In this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to them in
Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
-13-
<PAGE> 18
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 8.06. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY COURT IN THE
STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK IN ANY ACTION, SUIT
OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS
GUARANTEE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY, AND TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE GUARANTOR HEREBY WAIVES AND AGREES NOT TO
ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT
THIS GUARANTEE AGREEMENT OR ANY DOCUMENT OR ANY INSTRUMENT REFERRED TO HEREIN OR
THE SUBJECT MATTER HEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURTS. THE
GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR
REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET FORTH IN THIS GUARANTEE AGREEMENT
OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW YORK.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
-14-
<PAGE> 19
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
SEMCO ENERGY, INC.
By:
--------------------------------------
Name:
Title:
BANK ONE TRUST COMPANY, NA
as Trustee
By:
--------------------------------------
Name:
Title:
-15-
<PAGE> 1
[DICKINSON WRIGHT LETTERHEAD]
November 30, 1999 EXHIBIT 5.1
Securities and Exchange Commission
Washington, DC 20549
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We are acting as counsel to SEMCO Energy, Inc. ("SEMCO") in connection
with the preparation of a Registration Statement on Form S-3 (the "Registration
Statement"), including a preliminary prospectus, which is being filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"). The Registration Statement covers such indeterminate number or
amount of Senior Debt Securities, Subordinated Debt Securities, Preferred Stock
and Common Stock of SEMCO, Trust Preferred Securities (the "Trust Preferred
Securities") of SEMCO Capital Trust I, SEMCO Capital Trust II and SEMCO Capital
Trust III (collectively, the "SEMCO Trusts") and guarantees by SEMCO (the "Trust
Guarantees") of the Trust Preferred Securities. The Registration Statement also
includes Stock Purchase Contracts to purchase shares of Common Stock of SEMCO
which may be offered as parts of Stock Purchase Units.
The Senior Debt Securities will be issued pursuant to a Senior Debt
Securities Indenture, as supplemented, between SEMCO and the trustee named
herein (the "Senior Indenture"); the Subordinated Debt Securities will be issued
pursuant to a Subordinated Debt Securities Indenture, as supplemented, between
SEMCO and the trustee named therein (the "Subordinated Indenture"); the Trust
Preferred Securities will be issued pursuant to the applicable SEMCO Trust; and
the Trust Guarantees will be issued pursuant to Trust Guarantee Agreements
between SEMCO and the trustee named therein (the "Trust Guarantee Agreements").
1. We are of the opinion that, upon compliance with the pertinent
provisions of the Act and the Trust Indenture Act of 1939, as amended, upon
compliance with applicable securities or blue sky laws of various jurisdictions
and upon the adoption of appropriate resolutions by the Board of Directors of
SEMCO or a duly authorized committee thereof, (i) when the Senior Indenture and
the Subordinated Indenture have been duly executed and delivered and when the
Senior Debt Securities and the Subordinated Debt Securities have been executed,
authenticated and delivered in accordance with the terms of the Senior Indenture
and the Subordinated Indenture, as the case may be, the Senior Debt Securities
and the Subordinated Debt Securities will be binding obligations of SEMCO, and
(ii) when the SEMCO Trusts and the Trust Guarantees have been duly executed, and
the Trust Preferred Securities have been
<PAGE> 2
[DICKINSON WRIGHT LETTERHEAD]
Securities and Exchange Commission
November 30, 1999
Page 2
executed, authenticated and delivered in accordance with the terms of the
applicable SEMCO Trust, the Trust Guarantees will be binding obligations of
SEMCO. The foregoing is subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws from
time to time in force and to general principles of equity, whether considered in
a proceeding at law or in equity,
2. We are further of the opinion that the Preferred Stock and Common
Stock when issued and sold, as contemplated in the Registration Statement, and
in the case of Common Stock either directly or by Stock Purchase Contracts or
Stock Purchase Units, will be legally issued, fully paid and non-assessable.
The foregoing opinions are limited solely to the Federal laws of the
United States, the laws of the State of Michigan, and, with respect to paragraph
1 above the laws of the State of New York. We are expressing no opinion as to
the effect of the laws of any other jurisdiction and we have, with respect to
the laws of the State of New York, relied upon the opinion of Dewey Ballantine
LLP, attached as Exhibit A hereto, as to the matters set forth in paragraph 1
above.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the statements with respect to our firm under the
captions "Legal Matters" in the Registration Statement. In giving the foregoing
consent, we do not hereby admit that we come within the category of persons
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
Very truly yours,
/s/ Dickinson Wright PLLC
<PAGE> 3
EXHIBIT A TO EXHIBIT 5.1
[DEWEY BALLANTINE LLP LETTERHEAD]
November 30, 1999
Dickinson Wright PLLC
500 Woodward Avenue
Suite 4000
Detroit, Michigan 48226-3425
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We are acting as counsel to underwriters to be designated in connection with a
Registration Statement on Form S-3, including a preliminary prospectus, which is
being filed with the Securities and Exchange Commission (the "Commission") on or
about the date hereof (the "Registration Statement"), for the registration under
the Securities Act of 1933, as amended (the "Act"), of (1) Senior Debt
Securities ("Senior Debt Securities") of SEMCO Energy, Inc. (the "Company"), (2)
Subordinated Debentures ("Subordinated Debentures") of the Company, (3) Trust
Preferred Securities of SEMCO Capital Trust I, SEMCO Capital Trust II and SEMCO
Capital Trust III (collectively, the "SEMCO Trusts"), (4) Preferred Stock and
Common Stock of the Company, and (5) the Trust Guarantees (as defined in the
Registration Statement) of the Company with respect to such Trust Preferred
Securities. The Registration Statement also relates to Stock Purchase Contracts
and Stock Purchase Units.
The Senior Debt Securities would be issued pursuant to a Senior
Indenture, as supplemented, between SEMCO and the trustee named therein (the
"Senior Indenture"); the Subordinated Debentures would be issued pursuant to a
Subordinated Indenture, as supplemented, between SEMCO and the trustee named
therein (the "Subordinated Indenture"); and the Trust Guarantees would be in the
form of the Trust Guarantee Agreements between SEMCO and the trustee named
therein (the "Trust Guarantee Agreements"), in each case in the respective forms
filed as exhibits to the Registration Statement.
We are of the opinion that, assuming that issuance of the
Senior Debt Securities, the Subordinated Debentures and the Trust Guarantees has
been approved by all requisite state regulatory authorities and the issuance of
securities by the Company is not subject to regulation under the Public Utility
Holding Company Act of 1935, as amended, pursuant to an exemption thereunder,
upon compliance with the pertinent provisions of the Act and the Trust Indenture
Act of 1939, as amended, upon compliance with applicable securities or blue sky
laws of various jurisdictions, upon the adoption of appropriate resolutions by
the Board of Directors of the Company or a duly authorized committee thereof,
when the Senior Indenture has been duly executed and delivered by the proper
officers of the Company and the trustee named therein, when the Subordinated
Indenture has been duly executed and delivered by the proper officers of the
Company and the trustee named therein, when the Trust Guarantee Agreements have
been duly executed and delivered by the proper officers of the Company and the
trustee named therein, and when the Senior Debt Securities and the Subordinated
Debentures have been executed, authenticated and delivered in accordance with
the terms of the Senior Indenture and the Subordinated Indenture, as the case
may be, the Senior Debt Securities, the Subordinated Debentures and the Trust
Guarantees will be binding obligations of the Company (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors' rights generally and to
general principles of equity, whether considered in a proceeding at law or in
equity).
We are members of the Bar of the State of New York and we do
not express any opinion herein concerning any law other than the law of the
State of New York.
This opinion is furnished solely for your benefit in
connection with your rendering an opinion to the Company to be filed as Exhibit
5.1 to the Registration Statement and we hereby consent to your attaching this
opinion as an annex to such opinion. This opinion may not be relied upon by you
for any other purpose, or quoted to or relied upon by any other person, firm or
entity for any purpose, without our prior written consent.
Very truly yours,
/s/ DEWEY BALLANTINE LLP
<PAGE> 1
EXHIBIT 5.2
[RICHARDS, LAYTON & FINGER LETTERHEAD]
November 30, 1999
SEMCO Capital Trust I
SEMCO Capital Trust II
SEMCO Capital Trust III
c/o SEMCO Energy, Inc.
405 Water Street
Port Huron, Michigan 48061-5026
Re: SEMCO Capital Trust I
SEMCO Capital Trust II
SEMCO Capital Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for SEMCO Energy, Inc., a
Michigan corporation (the "Company"), SEMCO Capital Trust I, a Delaware business
trust ("Trust I"), SEMCO Capital Trust II, a Delaware business trust ("Trust
II"), and SEMCO Capital Trust III ("Trust III"). Trust I, Trust II and Trust III
are hereinafter collectively referred to as the "Trusts" and sometimes
hereinafter individually referred to as a "Trust"), in connection with the
matters set forth herein. At your request, this opinion is being furnished to
you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of Trust I, as filed with the Secretary
of State on November 23, 1999;
(b) The Certificate of Trust of Trust II, as filed with the Secretary
of State on November 23, 1999;
(c) The Certificate of Trust of Trust III, as filed with the Secretary
of State on November 23, 1999;
<PAGE> 2
SEMCO Capital Trust I
SEMCO Capital Trust II
SEMCO Capital Trust III
November 30, 1999
Page 2
(d) The Trust Agreement of Trust I, dated as of November 23, 1999
among the Company and the trustees of Trust I named therein;
(e) The Trust Agreement of Trust II, dated as of November 23, 1999
among the Company and the trustees of Trust II named therein;
(f) The Trust Agreement of Trust III, dated as of November 23, 1999
among the Company and trustees of Trust III named therein;
(g) The Registration Statement (the "Registration Statement") on
Form S-3, including a preliminary prospectus with respect to the Trusts (the
"Prospectus"), relating to the Preferred Securities of the Trusts representing
undivided beneficial interests in the assets of the Trusts (each, a "Preferred
Security" and collectively, the "Preferred Securities"), as filed by the
Company and the Trusts with the Securities and Exchange Commission on or about
November 30, 1999;
(h) A form of Amended and Restated Trust Agreement for each of the
Trusts, to be entered into between the Company, the trustees of the Trust named
therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of such Trust (including Exhibits C and D thereto)
(collectively, the "Trust Agreements" and individually, a "Trust Agreement"),
attached as an exhibit to the Registration Statement; and
(i) A Certificate of Good Standing for each of the Trusts, dated
November 24, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreements.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (i) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (i) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent
with the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with
<PAGE> 3
SEMCO Capital Trust I
SEMCO Capital Trust II
SEMCO Capital Trust III
November 30, 1999
Page 3
the originals of all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of the
Trust Agreements will constitute the entire agreement among the parties thereto
with respect to the subject matter thereof, including with respect to the
creation, operation and termination of the applicable Trust, and that the Trust
Agreements and the Certificates of Trust will be in full force and effect and
will not be amended, (ii) except to the extent provided in paragraph 1 below,
the due organization or due formation, as the case may be, and valid existence
in good standing of each party to the documents examined by us under the laws of
the jurisdiction governing its organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trusts (collectively, the "Preferred
Security Holders") of a Preferred Security Certificate for such Preferred
Security and the payment for such Preferred Security, in accordance with the
Trust Agreements and the Registration Statement, and (vii) that the Preferred
Securities are authenticated, issued and sold to the Preferred Security Holders
in accordance with the Trust Agreements and the Registration Statement. We have
not participated in the preparation of the Registration Statement or the
Prospectus and assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder which are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities of each Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the applicable
Trust.
<PAGE> 4
SEMCO Capital Trust I
SEMCO Capital Trust II
SEMCO Capital Trust III
November 30, 1999
Page 4
3. The Preferred Security Holders, as beneficial owners of the
applicable Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated to make payments as set forth in the Trust
Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Matters" in the
Prospectus and "Legal Opinions" in the Prospectus Supplement. In giving the
foregoing consents, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or relied upon by, any
other person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
WF/mc
<PAGE> 1
EXHIBIT 12
SEMCO ENERGY, Inc.
Ratio of Earnings to Fixed Charges
(Thousands of Dollars)
<TABLE>
<CAPTION>
- ------------------------------ --------- ---------------------------------------------------------------------------------------
12 Months Year Ended
Ended ----------
Description 09/30/99 1998 1997(c) 1996(c) 1995 1994
- ------------------------------ --------- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Earning as Defined(a)
Net Income (loss) $ 14,825 $ 10,040 $ 15,425 ($ 12,762) $ 11,331 $ 9,992
Income Taxes 8,394 7,011 8,469 (7,106) 6,151 4,560
Other items (96) 672 (96) (96) (96) 1,882
Fixed charges as defined 15,726 15,085 16,741 14,617 14,402 14,092
-------- -------- -------- -------- -------- --------
Earnings as defined $ 38,849 $ 32,808 $ 40,539 ($ 5,347) $ 31,788 $ 30,526
======== ======== ======== ======== ========= ========
Fixed charges as defined(a)
Interest on long-term debt $ 12,392 $ 11,488 $ 9,389 $ 8,514 $ 8,546 $ 8,605
Amortization of debt expense 509 450 449 431 520 454
Other interest charges 2,551 2,873 6,629 5,398 5,062 4,759
Preferred securities dividends
and distributions 274 274 274 274 274 274
-------- -------- -------- -------- --------- --------
Fixed charges as defined $ 15,726 $ 15,085 $ 16,741 $ 14,617 $ 14,402 $ 14,092
======== ======== ======== ======== ========= ========
Ratio of earnings to fixed
charges 2.47 2.17 2.42 (b) 2.21 2.17
======== ======== ======== ======== ========= ========
- ------------------------------ -------- ---------------------------------------------------------------------------------------
</TABLE>
Notes:
(a) Earnings and fixed charges as defined in instructions for Item 503 of
Regulation S-K.
(b) For the year ended December 31, 1996, fixed charges exceeded earnings by
$20.0 million. Earnings as defined include a $32.3 million non-cash pretax
write-down of the NOARK investment. Excluding the NOARK write-down the
ratio of earnings to fixed charges would have been 1.84
(c) Restated to account for a 1998 acquisition as a pooling of interests. Years
prior to 1996 were not restated for the pooling of interests as the effects
were not material.
<PAGE> 1
EXHIBIT 23.4
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 4, 1999 on
the consolidated financial statements of SEMCO Energy, Inc. as of December 31,
1998 and 1997 and for the three years ended December 31, 1998 and our report
dated November 15, 1999 on our examination of the Pro Forma Combined Statement
of Income for the year ended December 31, 1998 and to all references to our Firm
included in this registration statement.
/s/Arthur Anderson LLP
Detroit, Michigan,
November 24, 1999
<PAGE> 1
EXHIBIT 23.5
Consent of Independent Public Accountants
The Board of Directors
SEMCO Energy, Inc.
We consent to the incorporation by reference in the registration statement on
Form S-3 of SEMCO Energy, Inc. of our report dated January 15, 1999, with
respect to the combined statements of financial position of ENSTAR Natural Gas
Company (a division of Seagull Energy Corporation) and Alaska Pipeline Company
(a subsidiary of Seagull Energy Corporation) as of December 31, 1998 and 1997,
and the related combined statements of income and cash flows for each of the
years in the three-year period ended December 31, 1998, which report appears in
the Form 8-K of SEMCO Energy, Inc. dated November 24, 1999, and to the
reference to our firm under the heading "Experts".
/s/ KPMG LLP
Anchorage, Alaska
November 29, 1999
<PAGE> 1
EXHIBIT 24
SEMCO ENERGY, INC.
POWER OF ATTORNEY
Whereas, the Board of Directors of SEMCO Energy, Inc., a Michigan
corporation, by written consent dated as of November 16, 1999, authorized the
execution of one or more Registration Statements for the registration and sale
of up to $500,000,000 of securities and the filing of said Registration
Statements with the Securities and Exchange Commission under the Securities Act
of 1933, as amended.
NOW, THEREFORE, each of the undersigned hereby appoints William L. Johnson
and Sebastian Coppola his or her true and lawful attorneys to execute, in
his/her name and in the capacity shown below, said Registration Statements and
any and all amendments thereto and to file the same with the Securities and
Exchange Commission. Each of said attorneys shall have full power of
substitution and resubstitution.
IN WITNESS WHEREOF, we have hereunto set our hands as of the 16th day of
November, 1999.
/s/ Daniel A. Burkhardt /s/ William L. Johnson
- --------------------------------- ---------------------------------
Daniel A. Burkhardt, Director William L. Johnson, Chairman,
President, CEO and Director
(Principal Executive Officer)
/s/ Edward J. Curtis /s/ Harvey I. Klein
- --------------------------------- ---------------------------------
Edward J. Curtis, Director Harvey I. Klein, Director
/s/ Sebastian Coppola /s/ Frederick S. Moore
- --------------------------------- ---------------------------------
Sebastian Coppola, Senior Vice Frederick S. Moore, Director
President and CFO (Principal
Financial and Accounting Officer)
/s/ John T. Ferris /s/ Edith A. Stotler
- --------------------------------- ---------------------------------
John T. Ferris, Director Edith A. Stotler, Director
/s/ Michael O. Frazer /s/ Donald N. Thomason
- --------------------------------- ---------------------------------
Michael O. Frazer, Director Donald N. Thomason, Director
/s/ Marcus Jackson
- ---------------------------------
Marcus Jackson, Director
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)___
------------------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
------------------
SEMCO ENERGY, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
MICHIGAN 38-2144267
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
405 WATER STREET
PORT HURON, MICHIGAN 48060
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Chicago and State of Illinois on the 24th day of November, 1999.
BANK ONE TRUST COMPANY, NA
TRUSTEE
By /s/ John R. Prendiville
-----------------------------
John R. Prendiville
Vice President
*EXHIBITS 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF BANK ONE TRUST COMPANY, NA FILED
AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF THE DOW CHEMICAL
COMPANY, FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999.
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 24, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between SEMCO ENERGY, INC.
and BANK ONE TRUST COMPANY, NA, as Trustee, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
By /s/ John R. Prendiville
--------------------------------
John R. Prendiville
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: Bank One Trust Company, NA Call Date: 12/31/98
Address: 100 Broad Street ST-BK: 17-1630 FFIEC 032
City, State Zip: Columbus, OH 43271 Page RC-1
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
a. Noninterest-bearing balances and currency and coin(1) .................. 0081 159,911 1.a
b. Interest-bearing balances(2)............................................ 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities (from Schedule RC-B, column A) ............. 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell .................................................................... 1350 576,473 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
RC-C)...................................................................... 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses............................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
reserve (item 4.a minus 4.b and 4.c).................................. 2125 32,593 4.d
5. Trading assets (from Schedule RD-D)........................................ 3545 0 5.
6. Premises and fixed assets (including capitalized leases) 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M) 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)............................................. 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding 2155 0 9.
10. Intangible assets (from Schedule RC-M)..................................... 2143 31,392 10.
11. Other assets (from Schedule RC-F).......................................... 2160 127,322 11.
12. Total assets (sum of items 1 through 11)................................... 2170 970,653 12.
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98
Address: 100 East Broad Street ST-BK: 171630 FFIEC 032
City, State Zip: Columbus, OH 43271 Page RC-2
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
LIABILITIES
<S> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1).......................................... 2200 802,791 13.a
(1) Noninterest-bearing(1)........................................... 6631 727,720 13.a1
(2) Interest-bearing................................................. 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)...
(1) Noninterest bearing..............................................
(2) Interest-bearing.................................................
14. Federal funds purchased and securities sold under agreements
to repurchase: ......................................................... RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury ............................ RCON 2840 0 15.a
b. Trading Liabilities (from Sechedule RC-D)............................ RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less........................... 2332 0 16.a
b. With original maturity of more than one year........................ A547 0 16.b
c. With original maturity of more than three years ..................... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding................. 2920 0 18.
19. Subordinated notes and debentures....................................... 3200 0 19.
20. Other liabilities (from Schedule RC-G).................................. 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20).......................... 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus........................... 3838 0 23.
24. Common stock............................................................ 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock)................ 3839 35,157 25.
26. a. Undivided profits and capital reserves............................... 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities........................................................... 8434 56 26.b
27. Cumulative foreign currency translation adjustments .................... 3284 0 27.
28. Total equity capital (sum of items 23 through 27) ...................... 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)................................... 3300 970,653 29.
</TABLE>
<TABLE>
Memorandum
<S><C>
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the Number
bank by independent external auditors as of any date during 1996 ..........................RCFD 6724...N/A. M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank
with generally accepted auditing standards by a certified performed by other external auditors (may be
public accounting firm which submits a report on the bank required by state chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by
a certified public accounting firm (may be required
by state chartering authority)
</TABLE>
- ----------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE> 1
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)____
________________________
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
_________________________
SEMCO ENERGY, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
MICHIGAN 38-2144267
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
405 WATER STREET
PORT HURON, MICHIGAN 48060
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTEE OF PREFERRED SECURITIES
OF SEMCO CAPITAL TRUST I
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the
City of Chicago and State of Illinois on the 24th day of November,
1999.
BANK ONE TRUST COMPANY, NA
TRUSTEE
By /s/ John R. Prendiville
------------------------------
John R. Prendiville
Vice President
*EXHIBITS 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF BANK ONE TRUST COMPANY, NA FILED
AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF THE DOW CHEMICAL
COMPANY, FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999.
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 24, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of guarantee agreement between SEMCO
ENERGY, INC. and BANK ONE TRUST COMPANY, NA, as Trustee, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
By /s/ John R. Prendiville
--------------------------------------
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: Bank One Trust Company, NA
Address: 100 Broad Street
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Page RC-1
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU ----
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RCON
RC-A): ----
a. Noninterest-bearing balances and currency and coin(1).................... 0081 159,911 1.a
b. Interest-bearing balances(2)............................................. 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............. 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 576,473 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
----
RC-C)....................................................................... 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses................................ 3123 10 4.b
c. LESS: Allocated transfer risk reserve.................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
----
reserve (item 4.a minus 4.b and 4.c)........................................ 2125 32,593 4.d
5. Trading assets (from Schedule RD-D)......................................... 3545 0 5.
6. Premises and fixed assets (including capitalized leases) 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M) 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).............................................. 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding................ 2155 0 9.
10. Intangible assets (from Schedule RC-M)...................................... 2143 31,392 10.
11. Other assets (from Schedule RC-F)........................................... 2160 127,322 11.
12. Total assets (sum of items 1 through 11).................................... 2170 970,653 12.
</TABLE>
- -----------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
Legal Title of Bank: Bank One Trust Company, N.A.
Address: 100 East Broad Street
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
Call Date: 12/31/98 ST-BK: 171630 FFIEC 032
Page RC-2
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
-----------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)............................................... 2200 802,791 13.a
(1) Noninterest-bearing(1)................................................ 6631 727,720 13.a1
(2) Interest-bearing..................................................... 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II).......................................
(1) Noninterest bearing..................................................
(2) Interest-bearing.....................................................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D)................................ RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less............................... 2332 0 16.a
b. With original maturity of more than one year............................ A547 0 16.b
c. With original maturity of more than three years ......................... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding..................... 2920 0 18.
19. Subordinated notes and debentures........................................... 3200 0 19.
20. Other liabilities (from Schedule RC-G)...................................... 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20).............................. 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus............................... 3838 0 23.
24. Common stock................................................................ 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock).................... 3839 35,157 25.
26. a. Undivided profits and capital reserves................................... 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities............................................................... 8434 56 26.b
27. Cumulative foreign currency translation adjustments......................... 3284 0 27.
28. Total equity capital (sum of items 23 through 27)........................... 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)....................................... 3300 970,653 29.
</TABLE>
<TABLE>
Memorandum
<S><C>
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank Number
by independent external auditors as of any date during 1996 .............................RCFD 6724 ......N.A. M.1.
1 = Independent audit of the bank conducted in accordance 4.= Directors' examination of the bank
with generally accepted auditing standards by a certified performed by other external auditors (may be
public accounting firm which submits a report on the bank required by state chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by
conducted in accordance with generally accepted auditing external auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements
submits a report on the consolidated holding company by external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be
required by state chartering authority)
</TABLE>
- -----------------------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE> 1
EXHIBIT 25.3
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
-------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------------------------
SEMCO ENERGY, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
MICHIGAN 38-2144267
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
405 WATER STREET
PORT HURON, MICHIGAN 48060
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTEE OF PREFERRED SECURITIES
OF SEMCO CAPITAL TRUST II
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the
City of Chicago and State of Illinois on the 24th day of November,
1999.
BANK ONE TRUST COMPANY, NA
TRUSTEE
By /s/ John R. Prendiville
--------------------------------------------
John R. Prendiville
Vice President
*EXHIBITS 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF BANK ONE TRUST COMPANY, NA FILED
AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF THE DOW CHEMICAL
COMPANY, FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999.
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 24, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of guarantee agreement between SEMCO
ENERGY, INC. and BANK ONE TRUST COMPANY, NA, as Trustee, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
By /s/ John R. Prendiville
----------------------------------
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, NA Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Address: 100 Broad Street Page RC-1
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU ----
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin(1)............. 0081 159,911 1.a
b. Interest-bearing balances(2)...................................... 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)......... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)...... 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 576,473 3.
4. Loans and lease financing receivables: RCON
a. Loans and leases, net of unearned income (from Schedule ----
RC-C)................................................................ 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses......................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve............................. 3128 0 4.c
RCON
d. Loans and leases, net of unearned income, allowance, and ----
reserve (item 4.a minus 4.b and 4.c).............................. 2125 32,593 4.d
5. Trading assets (from Schedule RD-D).................................. 3545 0 5.
6. Premises and fixed assets (including capitalized leases) 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M)......................... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)....................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding 2155 0 9.
10. Intangible assets (from Schedule RC-M)............................... 2143 31,392 10.
11. Other assets (from Schedule RC-F).................................... 2160 127,322 11.
12. Total assets (sum of items 1 through 11)............................. 2170 970,653 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK: 171630 FFIEC 032
Address: 100 East Broad Street Page RC-2
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
<TABLE>
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)................... 2200 802,791 13.a
(1) Noninterest-bearing(1).................... 6631 727,720 13.a1
(2) Interest-bearing............................ 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)...
(1) Noninterest bearing.......................
(2) Interest-bearing..........................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D)................ RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less.... 2332 0 16.a
b. With original maturity of more than one year. A547 0 16.b
c. With original maturity of more than three years .......... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding 2920 0 18.
19. Subordinated notes and debentures................ 3200 0 19.
20. Other liabilities (from Schedule RC-G)........... 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20)... 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.... 3838 0 23.
24. Common stock..................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 35,157 25.
26. a. Undivided profits and capital reserves........ 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................... 8434 56 26.b
27. Cumulative foreign currency translation adjustments 3284 0 27.
28. Total equity capital (sum of items 23 through 27) 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............ 3300 970,653 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S><C>
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the
bank by independent external auditors as of any date during 1996 . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .....RCFD 6724
. . . . . . . . N/A NUMBER M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank
with generally accepted auditing standards by a certified performed by other external auditors (may be
public accounting firm which submits a report on the bank required by state chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial
conducted in accordance with generally accepted auditing statements by external auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's
submits a report on the consolidated holding company financial statements by external
(but not on the bank separately) auditors
7 = Other audit procedures (excluding tax preparation
work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by a certified public
accounting firm (may be required by state chartering authority)
</TABLE>
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE> 1
EXHIBIT 25.4
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)__
-------------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
--------------
SEMCO ENERGY, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
MICHIGAN 38-2144267
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
405 WATER STREET
PORT HURON, MICHIGAN 48060
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTEE OF PREFERRED SECURITIES
OF SEMCO CAPITAL TRUST III
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the
City of Chicago and State of Illinois on the 24th day of November,
1999.
BANK ONE TRUST COMPANY, NA
TRUSTEE
By /s/ John R. Prendiville
-------------------------------
John R. Prendiville
Vice President
*EXHIBITS 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF BANK ONE TRUST COMPANY, NA FILED
AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF THE DOW CHEMICAL
COMPANY, FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999.
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 24, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of guarantee agreement between SEMCO
ENERGY, INC. and BANK ONE TRUST COMPANY, NA, as Trustee, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
By /s/ John R. Prendiville
------------------------------
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: Bank One Trust Company, NA
Address: 100 Broad Street
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Page RC-1
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNT IN THOUSANDS C300
---------
RCON BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin(1) 0081 59,911 1.a
b. Interest-bearing balances(2)............................................ 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 576,473 3.
4. Loans and lease financing receivables:
RCON
a. Loans and leases, net of unearned income (from Schedule ----
RC-C)...................................................................... 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses............................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve................................... 3128 0 4.c
RCON
d. Loans and leases, net of unearned income, allowance, and ----
reserve (item 4.a minus 4.b and 4.c).................................... 2125 32,593 4.d
5. Trading assets (from Schedule RD-D)................................... 3545 0 5.
6. Premises and fixed assets (including capitalized leases) 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M) 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................ 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding 2155 0 9.
10. Intangible assets (from Schedule RC-M)................................ 2143 31,392 10.
11. Other assets (from Schedule RC-F)..................................... 2160 127,322 11.
12. Total assets (sum of items 1 through 11).............................. 2170 970,653 12.
</TABLE>
- -------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
Legal Title of Bank: Bank One Trust Company, N.A.
Address: 100 East Broad Street
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
Call Date: 12/31/98 ST-BK: 171630 FFIEC 032
Page RC-2
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)............................................. 2200 802,791 13.a
(1) Noninterest-bearing(1)............................................. 6631 727,720 13.a1
(2) Interest-bearing................................................... 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)...
(1) Noninterest bearing.................................................
(2) Interest-bearing....................................................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D).............................. RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less.............................. 2332 0 16.a
b. With original maturity of more than one year........................... A547 0 16.b
c. With original maturity of more than three years ........................ A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding.................... 2920 0 18.
19. Subordinated notes and debentures.......................................... 3200 0 19.
20. Other liabilities (from Schedule RC-G)..................................... 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20)............................. 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.............................. 3838 0 23.
24. Common stock............................................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock)................... 3839 35,157 25.
26. a. Undivided profits and capital reserves.................................. 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.............................................................. 8434 56 26.b
27. Cumulative foreign currency translation adjustments........................ 3284 0 27.
28. Total equity capital (sum of items 23 through 27).......................... 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)...................................... 3300 970,653 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S><C>
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date during 1996 ........................ RCFD 6724 N/A Number M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank
with generally accepted auditing standards by a certified performed by other external auditors (may be
public accounting firm which submits a report on the bank required by state chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by
a certified public accounting firm (may be required
by state chartering authority)
</TABLE>
- ----------------------------
6
<PAGE> 1
EXHIBIT 25.5
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)___
-------------------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------
SEMCO CAPITAL TRUST I
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE PENDING
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
405 WATER STREET
PORT HURON, MICHIGAN 48060
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
PREFERRED SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising
or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to
be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Chicago and State of Illinois on the
24th day of November, 1999.
BANK ONE TRUST COMPANY, NA
TRUSTEE
By /s/ John R. Prendiville
-------------------------------------
John R. Prendiville
Vice President
*EXHIBITS 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF BANK ONE TRUST COMPANY, NA FILED
AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF THE DOW CHEMICAL
COMPANY, FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999.
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 24, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between SEMCO CAPITAL TRUST
I and BANK ONE TRUST COMPANY, NA, as Trustee, the undersigned, in accordance
with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal or
State authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
By /s/ John R. Prendiville
-------------------------------
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S><C>
Legal Title of Bank: Bank One Trust Company, NA Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Address: 100 Broad Street Page RC-1
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU
---- ------------
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin(1) 0081 159,911 1.a
b. Interest-bearing balances(2)........................................ 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)........... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)........ 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 576,473 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
----
RC-C).................................................................. 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses........................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve......... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
----
reserve (item 4.a minus 4.b and 4.c)................................... 2125 32,593 4.d
5. Trading assets (from Schedule RD-D)......... 3545 0 5.
6. Premises and fixed assets (including capitalized leases)............... 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M)........................... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)......................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding........... 2155 0 9.
10. Intangible assets (from Schedule RC-M)................................. 2143 31,392 10.
11. Other assets (from Schedule RC-F)...................................... 2160 127,322 11.
12. Total assets (sum of items 1 through 11)............................... 2170 970,653 12.
</TABLE>
- -----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S><C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK: 171630 FFIEC 032
Address: 100 East Broad Street Page RC-2
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
<S> <C> <C> <C>
from Schedule RC-E, part 1)......................................... 2200 802,791 13.a
(1) Noninterest-bearing(1)......................................... 6631 727,720 13.a1
(2) Interest-bearing................................................. 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)..................................
(1) Noninterest bearing.............................................
(2) Interest-bearing................................................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D)............................ RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less.......................... 2332 0 16.a
b. With original maturity of more than one year....................... A547 0 16.b
c. With original maturity of more than three years..................... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding 2920 0 18.
19. Subordinated notes and debentures...................................... 3200 0 19.
20. Other liabilities (from Schedule RC-G)................................. 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20)......................... 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.......................... 3838 0 23.
24. Common stock........................................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 35,157 25.
26. a. Undivided profits and capital reserves.............................. 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.......................................................... 8434 56 26.b
27. Cumulative foreign currency translation adjustments 3284 0 27.
28. Total equity capital (sum of items 23 through 27) 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).................................. 3300 970,653 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of auditing
work performed for the bank by independent external Number
auditors as of any date during 1996....................................RCFD 6724..... N/A M.I.
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Director's examination of the bank conducted in accordance with 8 = No external audit work
generally accepted auditing standards by a certified public
accounting firm (may be required by state chartering authority)
</TABLE>
<PAGE> 1
EXHIBIT 25.6
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
-------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------
SEMCO CAPITAL TRUST II
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE PENDING
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
405 WATER STREET
PORT HURON, MICHIGAN 48060
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
PREFERRED SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to commence
business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the
City of Chicago and State of Illinois on the 24th day of November,
1999.
BANK ONE TRUST COMPANY, NA
TRUSTEE
By /s/ John R. Prendiville
-------------------------
John R. Prendiville
Vice President
*EXHIBITS 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF BANK ONE TRUST COMPANY, NA FILED
AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF THE DOW CHEMICAL
COMPANY, FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999.
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 24, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between SEMCO CAPITAL TRUST
II and BANK ONE TRUST COMPANY, NA, as Trustee, the undersigned, in accordance
with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal or
State authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
By /s/ John R. Prendiville
------------------------------
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, NA Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Address: 100 Broad Street Page RC-1
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU
---- --- --- ----
ASSETS
<S><C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A):............................................................. RCON
a. Noninterest-bearing balances and currency and coin(1)........... 0081 159,911 1.a
b. Interest-bearing balances(2).................................... 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)....... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D).... 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell............................................................. 1350 576,473 3.
4. Loans and lease financing receivables: RCON
a. Loans and leases, net of unearned income (from Schedule
RC-C).............................................................. 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses....................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve........................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
reserve (item 4.a minus 4.b and 4.c)............................ 2125 32,593 4.d
5. Trading assets (from Schedule RD-D)................................ 3545 0 5.
6. Premises and fixed assets (including capitalized leases)........... 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M)....................... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)..................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding....... 2155 0 9.
10. Intangible assets (from Schedule RC-M)............................. 2143 31,392 10.
11. Other assets (from Schedule RC-F).................................. 2160 127,322 11.
12. Total assets (sum of items 1 through 11)........................... 2170 970,653 12.
</TABLE>
- --------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK: 171630 FFIEC 032
Address: 100 East Broad Street Page RC-2
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1).................................... 2200 802,791 13.a
(1) Noninterest-bearing(1)..................................... 6631 727,720 13.a1
(2) Interest-bearing........................................... 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)...
(1) Noninterest bearing........................................
(2) Interest-bearing...........................................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D)....................... RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less.... 2332 0 16.a
b. With original maturity of more than one year. A547 0 16.b
c. With original maturity of more than three years ............... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding 2920 0 18.
19. Subordinated notes and debentures................................. 3200 0 19.
20. Other liabilities (from Schedule RC-G)............................ 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20).................... 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus..................... 3838 0 23.
24. Common stock...................................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 35,157 25.
26. a. Undivided profits and capital reserves......................... 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities..................................................... 8434 56 26.b
27. Cumulative foreign currency translation adjustments 3284 0 27.
28. Total equity capital (sum of items 23 through 27) 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................. 3300 970,653 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S><C> <C>
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date during 1996.........................RCFD 6724 N/A..... Number M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank
with generally accepted auditing standards by a certified performed by other external auditors
public accounting firm which submits a report on the bank (may be required by state chartering
authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial
conducted in accordance with generally accepted auditing statements by external auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's
submits a report on the consolidated holding company financial statements by external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding
tax preparation work)
3 = Directors' examination of the bank conducted in accordance with 8 = No external audit work
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE> 1
EXHIBIT 25.7
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
SEMCO CAPITAL TRUST III
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE PENDING
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
405 WATER STREET
PORT HURON, MICHIGAN 48060
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
PREFERRED SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the
City of Chicago and State of Illinois on the 24th day of November,
1999.
BANK ONE TRUST COMPANY, NA
TRUSTEE
By /s/ John R. Prendiville
------------------------------------
John R. Prendiville
Vice President
*EXHIBITS 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF BANK ONE TRUST COMPANY, NA FILED
AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF THE DOW CHEMICAL
COMPANY, FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999.
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 24, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between SEMCO CAPITAL TRUST
III and BANK ONE TRUST COMPANY, NA, as Trustee, the undersigned, in accordance
with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal or
State authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
By /s/ John R. Prendiville
--------------------------
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S><C><C>
Legal Title of Bank: Bank One Trust Company, NA Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Address: 100 Broad Street Page RC-1
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU
---- ------------
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
----
<S> <C> <C> <C>
a. Noninterest-bearing balances and currency and coin(1)................... 0081 159,911 1.a
b. Interest-bearing balances(2)............................................ 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............... 1754 0 2.a
Available-for-sale securities (from Schedule RC-B, column D)............ 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell.................................................................. 1350 576,473 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
----
RC-C)...................................................................... 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses............................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
----
reserve (item 4.a minus 4.b and 4.c).................................... 2125 32,593 4.d
5. Trading assets (from Schedule RD-D)................................... 3545 0 5.
6. Premises and fixed assets (including capitalized leases) 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M) 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................ 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding.......... 2155 0 9.
10. Intangible assets (from Schedule RC-M)................................ 2143 31,392 10.
11. Other assets (from Schedule RC-F)..................................... 2160 127,322 11.
12. Total assets (sum of items 1 through 11).............................. 2170 970,653 12.
</TABLE>
- ----------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK: 171630 FFIEC 032
Address: 100 East Broad Street Page RC-2
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
LIABILITIES
<S> <C> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)................................... 2200 802,791 13.a
(1) Noninterest-bearing(1).................................... 6631 727,720 13.a1
(2) Interest-bearing.......................................... 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)............................
(1) Noninterest bearing.......................................
(2) Interest-bearing..........................................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D)..................... RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less.................... 2332 0 16.a
b. With original maturity of more than one year................. A547 0 16.b
c. With original maturity of more than three years .............. A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding.......... 2920 0 18.
19. Subordinated notes and debentures................................ 3200 0 19.
20. Other liabilities (from Schedule RC-G)........................... 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20)................... 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................... 3838 0 23.
24. Common stock..................................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock)......... 3839 35,157 25.
26. a. Undivided profits and capital reserves........................ 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................................... 8434 56 26.b
27. Cumulative foreign currency translation adjustments.............. 3284 0 27.
28. Total equity capital (sum of items 23 through 27)................ 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................ 3300 970,653 29.
</TABLE>
Memorandum
To be reported only with the March Report of
Condition.
<TABLE>
<CAPTION>
<S><C> <S>
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank
by independent external auditors as of any date during 1996 .........................RCFD 6724 . .... Number M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by a
certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -------------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
