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Registration No. 333-37787
333-37787-01
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
South Carolina Electric & Gas Company
(Exact name of registrant as specified in its charter)
South Carolina
(State or other jurisdiction of incorporation or organization)
57-0248695
(I.R.S. Employer Identification No.)
1426 Main Street, Columbia, South Carolina 29201 (803) 748-3000
(Address, including zip code and telephone number, including area
code, of registrant's principal executive offices)
SCE&G Trust I
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
58-6353075
(I.R.S. Employer Identification No.)
c/o South Carolina Electric & Gas Company,
1426 Main Street, Columbia, South Carolina 29201 (803) 748-3000
(Address, including zip code and telephone number, including area
code, of registrant's principal executive offices)
H. T. Arthur, General Counsel,
South Carolina Electric & Gas Company
1426 Main St., Columbia, SC 29201, (803) 748-8547
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
With copies to:
John W. Currie, Esq. Kevin Stacey, Esq.
McNair Law Firm, P.A. Reid & Priest LLP
1301 Gervais Street - 17th Floor 40 West 57th Street
Columbia, South Carolina 29201 New York, New York 20019
(803) 799-9800 (212) 603-2000
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Approximate date of commencement of proposed sale to the public:
After the effective date of the Registration Statement, as
determined by market conditions and other factors.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
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, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [ ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier 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 this prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
Registrant certifies that it has reasonable grounds to believe that it meets all
of 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 Columbia, State of South Carolina, on
October 24, 1997.
(REGISTRANT) South Carolina Electric & Gas Company
By: s/W. B. Timmerman
(Name & Title): W. B. Timmerman, Chairman of the Board,
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed by the following
persons in the capacities and on the dates indicated.
(i) Principal executive officer:
By: s/W. B. Timmerman
(Name & Title): W. B. Timmerman, Chairman of the Board,
Chief Executive Officer and Director
Date: October 24, 1997
(ii) Principal financial officer:
By: s/K. B. Marsh
(Name & Title): K. B. Marsh, Vice President and Chief
Financial Officer, Controller and Director
Date: October 24, 1997
(ii) Principal accounting officer:
By: s/J. E. Addison
(Name & Title): J. E. Addison, Vice President and
Controller
Date: October 24, 1997
(iv) Other Directors:
* B. L. Amick; J. A. Bennett, W. B. Bookhart, Jr.; W. T. Cassels, Jr.; Hugh
M. Chapman; Elaine T. Freeman; Lawrence M. Gressette; W. Hayne Hipp; Lynne M.
Miller; F. Creighton McMaster; John B. Rhodes; Maceo K. Sloan.
* Signed on behalf of each of these persons:
s/W. B. Timmerman
(W. B. Timmerman)
(Attorney-in-Fact)
Directors who did not sign:
None
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Pursuant to the requests of the Securities Act of 1933, the
undersigned Registrant certifies that it has reasonable grounds to
believe that it meets the requirements for filing a Form S-3 and
has duly caused this registation statement or amendment thereto to
be signed on its behalf by the undersigned thereunto authorized, in
the City of Columbia, State of South Carolina, on October 24, 1997.
(REGISTRANT) SCE&G Trust I
By: South Carolina Electric & Gas
Company, as Depositor
By: s/W. B. Timmerman
(Name & Title) W. B. Timmerman, Chairman of the
Board, Chief Executive Officer
and Director
Date: October 24, 1997
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SOUTH CAROLINA ELECTRIC & GAS COMPANY
EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Description of Exhibits Pages
1. Underwriting Agreement
Form of Underwriting Agreement (Previously filed)
2. Plan of Acquisition, Reorganization, Arrangement,
Liquidation or Succession
Not Applicable
4. Instruments Defining the Rights of Security
Holders, Including Indentures
A. Form of Junior Subordinated Indenture between
the Company and The Bank of New York, as
Debenture Trustee (Previously filed)
B. Certificate of Trust of SCE&G Trust I (Previously filed)
C. Trust Agreement of SCE&G Trust I (Previously filed)
D. Form of Amended and Restated Trust Agreement of
SCE&G Trust I . . . . . . . . . . . . . . . . . . 6
E. Form of Trust Preferred Security Certificate
(included as Exhibit D of Exhibit 4(D)
F. Form of Guarantee Agreement (Previously filed)
5. Opinion re legality
A. Opinion of H. T. Arthur, Esq., as to legality of
Junior Subordinated Deferrable Interest
Debentures and Guarantee Agreement (Previously filed)
B. Opinion of Richards, Layton & Finger as to
legality of the Trust Preferred Securities to
be issued by SCE&G Trust I (Previously filed)
8. Opinion re Tax Matters
Opinion of McNair Law Firm, P.A. as to certain
federal income tax matters (Previously filed)
12. Statements re Computation of Ratios (Previously filed)
15. Letter re Unaudited Interim Financial Information
Not Applicable
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SOUTH CAROLINA ELECTRIC & GAS COMPANY
EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Description of Exhibits Pages
(continued)
23. Consents of Experts and Counsel
A. Consent of Deloitte & Touche LLP (Previously filed)
B. Consent of H. T. Arthur, Esq. (included in
Exhibit 5(A))
C. Consent of Richards, Layton & Finger (included in
Exhibit 5(B))
D. Consent of McNair Law Firm, P.A. (included in
Exhibit 8(A))
24. Power of attorney (Previously filed)
25. Statement of Eligibility of Trustee
Form T-1 Statement of Eligibility of The Bank of New
York to act as trustee under the Junior Subordinated
Indenture, the Amended and Restated Trust Agreement
of SCE&G Trust I and the Guarantee Agreement (Previously
filed)
26. Invitations for Competitive Bids
Not Applicable
27. Financial Data Schedule
Not Applicable
99. Additional Exhibits
Not Applicable
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Exhibit 4-D
==========================================
AMENDED AND RESTATED TRUST AGREEMENT
AMONG
SOUTH CAROLINA ELECTRIC & GAS COMPANY,
as Depositor
THE BANK OF NEW YORK,
as Property Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
and
THE SEVERAL HOLDERS (as defined herein)
- ---------------------
Dated as of October 28, 1997
- ---------------------
SCE&G TRUST I
==========================================
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SCE&G TRUST I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310 (a)(1) 8.7
(a)(2) 8.7
(a)(3) 8.9
(a)(4) 2.7(a)(ii)
(a)(5) 8.7(a)(5)
(b) 8.8
(c) Not Applicable
Section 311 (a) 8.13
(b) 8.13
(c) Not Applicable
Section 312 (a) 5.8
(b) 5.8
(c) 5.8
Section 313 (a) 8.15(a)
(b) 8.15(b)
(c) 10.8
(d) 8.15(c)
Section 314 (a) 8.16
(b) Not Applicable
(c)(1) 8.17
(c)(2) 8.17
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.1, 8.17
Section 315 (a) 8.1(d)(i)
(b) 8.2, 10.8
(c) 8.1(c)
(d) 8.1, 8.3
(e) Not Applicable
Section 316 (a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) 5.13(c)
(c) 6.7
Section 317 (a)(1)Not Applicable
(a)(2)Not Applicable
(b)5.10
Section 318 (a)10.10
Note: This reconciliation and tie sheet shall not, for any purpose,
be deemed to be a part of the Trust Agreement.
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TABLE OF CONTENTS
ARTICLE I
DEFINED TERMS 8
SECTION 1.1. Definitions. 8
ARTICLE II
CONTINUATION OF THE ISSUER TRUST 18
SECTION 2.1. Name. 18
SECTION 2.2. Office of the Delaware Trustee; Principal
Place of Business 18
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses 18
SECTION 2.4. Issuance of the Trust Preferred Securities 19
SECTION 2.5. Issuance of the Common Securities;
Subscription and Purchase of Debentures 19
SECTION 2.6. Continuation of Trust 19
SECTION 2.7. Authorization to Enter into Certain
Transactions 20
SECTION 2.8. Assets of Trust 24
SECTION 2.9. Title to Trust Property 24
ARTICLE III
PAYMENT ACCOUNT 24
SECTION 3.1. Payment Account 24
ARTICLE IV
REDEMPTION 25
SECTION 4.1. Distributions 25
SECTION 4.2. Redemption 26
SECTION 4.3. Subordination of Common Securities 28
SECTION 4.4. Payment Procedures 29
SECTION 4.5. Tax Returns and Reports 29
SECTION 4.6. Payment of Taxes, Duties, Etc. of
the Issuer Trust 29
SECTION 4.7. Payments under Indenture or Pursuant
to Direct Actions 30
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ARTICLE V
TRUST SECURITIES CERTIFICATES 30
SECTION 5.1. Initial Ownership 30
SECTION 5.2. The Trust Securities Certificates 30
SECTION 5.3. Execution and Delivery of Trust Securities
Certificates 31
SECTION 5.4. Book-Entry Trust Preferred Securities 31
SECTION 5.5. Registration of Transfer and Exchange of
Trust Preferred Securities Certificates 33
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates 35
SECTION 5.7. Persons Deemed Holders 36
SECTION 5.8. Access to List of Holders' Names
and Addresses 36
SECTION 5.9. Maintenance of Office or Agency 36
SECTION 5.10. Appointment of Paying Agent 36
SECTION 5.11. Ownership of Common Securities by Depositor 37
SECTION 5.12. Notices to Clearing Agency 37
SECTION 5.13. Rights of Holders; Waivers of Past Defaults 38
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING 40
SECTION 6.1. Limitations on Voting Rights 40
SECTION 6.2. Notice of Meetings 42
SECTION 6.3. Meetings of Holders of the Trust Preferred
Securities 42
SECTION 6.4. Voting Rights 42
SECTION 6.5. Proxies, etc 43
SECTION 6.6. Holder Action by Written Consent 43
SECTION 6.7. Record Date for Voting and Other Purposes 43
SECTION 6.8. Acts of Holders 44
SECTION 6.9. Inspection of Records 45
ARTICLE VII
REPRESENTATIONS AND WARRANTIES 45
SECTION 7.1. Representations and Warranties of the
Property Trustee and the Delaware Trustee 45
SECTION 7.2. Representations and Warranties of Depositor 46
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ARTICLE VIII
THE ISSUER TRUSTEES 47
SECTION 8.1. Certain Duties and Responsibilities 47
SECTION 8.2. Certain Notices 50
SECTION 8.3. Certain Rights of Property Trustee 50
SECTION 8.4. Not Responsible for Recitals or Issuance
of Securities 52
SECTION 8.5. May Hold Securities 53
SECTION 8.6. Compensation; Indemnity; Fees 53
SECTION 8.7. Corporate Property Trustee Required;
Eligibility of Issuer Trustees 54
SECTION 8.8. Conflicting Interests 54
SECTION 8.9. Co-Trustees and Separate Trustee 55
SECTION 8.10. Resignation and Removal; Appointment of
Successor 56
SECTION 8.11. Acceptance of Appointment by Successor 58
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business 59
SECTION 8.13. Preferential Collection of Claims Against
Depositor or Issuer Trust 59
SECTION 8.14. Property Trustee May File Proofs of Claim 59
SECTION 8.15. Reports by Property Trustee 60
SECTION 8.16. Reports to the Property Trustee 61
SECTION 8.17. Evidence of Compliance with Conditions
Precedent 61
SECTION 8.18. Number of Issuer Trustees 61
SECTION 8.19. Delegation of Power 61
SECTION 8.20. Appointment of Administrative Trustees 62
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER 63
SECTION 9.1. Dissolution Upon Expiration Date 63
SECTION 9.2. Early Dissolution 63
SECTION 9.3. Termination 63
SECTION 9.4. Liquidation 64
SECTION 9.5. Mergers, Consolidations, Amalgamations
or Replacements of Issuer Trust 65
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ARTICLE X
MISCELLANEOUS PROVISIONS 67
SECTION 10.1. Limitation of Rights of Holders 67
SECTION 10.2. Amendment 67
SECTION 10.3. Separability 68
SECTION 10.4. Governing Law 68
SECTION 10.5. Payments Due on Non-Business Day 69
SECTION 10.6. Successors 69
SECTION 10.7. Headings 69
SECTION 10.8. Reports, Notices and Demands 69
SECTION 10.9. Agreement Not to Petition 70
SECTION 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act 70
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee Agreement and Indenture 71
Exhibit A Certificate of Trust
Exhibit B Form of Letter of Representations
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Trust Preferred Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of October 28, 1997,
among (i) South Carolina Electric & Gas Company, a South Carolina
corporation (including any successors or assigns, the "Depositor"), (ii)
The Bank of New York, a New York banking corporation, as property
trustee (in such capacity, the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) The Bank of New York (Delaware), a Delaware banking
corporation, as Delaware trustee (in such capacity, the "Delaware
Trustee"), (iv) M. R. Cannon, an individual, K. B. Marsh, an individual,
and H. T. Arthur, an individual, each of whose address is c/o South
Carolina Electric & Gas Company, 1426 Main Street, Columbia, South
Carolina 29201 (each an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee
and the Administrative Trustees being referred to collectively as the
"Issuer Trustees") and (iv) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, Delaware Trustee and an Administrative
Trustee have heretofore duly declared and established a business trust
pursuant to the Delaware Business Trust Act (as defined herein) by
entering into the Trust Agreement, dated as of October 8, 1997 (the
"Original Trust Agreement") and by the execution and filing with the
Secretary of State of the State of Delaware of the Certificate of Trust,
filed on October 8, 1997, attached as Exhibit A; and
WHEREAS, the Depositor and the Issuer Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein
to provide for, among other things, (i) the issuance of the Common
Securities (as defined herein) by the Issuer Trust to the Depositor,
(ii) the issuance and sale of the Trust Preferred Securities (as defined
herein) by the Issuer Trust pursuant to the Underwriting Agreement (as
defined herein), (iii) the acquisition by the Issuer Trust from the
Depositor of all of the right, title and interest in the Debentures (as
defined herein) and (iv) the appointment of the Property Trustee and the
Administrative Trustees;
NOW, THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, each party, for
the benefit of the other parties and for the benefit of the Holders,
hereby amends and restates the Original Trust Agreement in its entirety
and agrees as follows:
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ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles;
(e) Unless the context otherwise requires, any reference to an
"Article," a "Section" or an "Exhibit" refers to an Article, a Section
or an Exhibit, as the case may be, of or to this Trust Agreement; and
(f) The words "hereby," "herein," "hereof" and "hereunder" and
other words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like
Amount of Debentures for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each of the Persons appointed in
accordance with Section 8.20 solely in such Person's capacity as
Administrative Trustee of the Issuer Trust heretofore formed and
continued hereunder and not in such Person's individual capacity, or any
successor Administrative Trustee appointed as herein provided.
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"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.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Book-Entry Trust Preferred Security, the rules
and procedures of the Clearing Agency for such Book-Entry Trust
Preferred Security, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction
in the premises judging such Person a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjudication or composition of or in respect of such Person
under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official)
of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 60
consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or
of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
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"Board of Directors" means the board of directors of the Depositor
or the Executive Committee of the board of directors of the Depositor
(or any other committee of the board of directors of the Depositor
performing similar functions) or a committee designated by the board of
directors of the Depositor (or any such committee), comprised of two or
more members of the board of directors of the Depositor or officers of
the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or officers of the
Depositor to which authority to act on behalf of the Board of Directors
has been delegated and to be in full force and effect on the date of
such certification, and delivered to the Issuer Trustees.
"Book-Entry Trust Preferred Securities Certificate" means a Trust
Preferred Securities Certificate evidencing ownership of Book-Entry
Trust Preferred Securities.
"Book-Entry Trust Preferred Security" means a Trust Preferred
Security, the ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 5.4.
"Business Day" means a day other than (i) a Saturday or Sunday,
(ii) a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed or
(iii) a day on which the Property Trustee's Corporate Trust Office or
the Corporate Trust Office of the Debenture Trustee is closed for
business.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. DTC will be the
initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means the date of execution and delivery of this
Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit C.
"Common Security" means a common undivided beneficial interest in
the assets of the Issuer 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 to the
extent provided herein.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal office of the Property Trustee located
in New York, New York, and (ii) when used with respect to the Debenture
Trustee, the principal office of the Debenture Trustee located in
Wilmington, Delaware.
"Debenture Event of Default" means any "Event of Default" specified
in Section 5.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures
to be redeemed under the Indenture, the date fixed for redemption of
such Debentures under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the
Indenture.
"Debenture Trustee" means the Person identified as the "Trustee" in
the Indenture, solely in its capacity as Trustee pursuant to the
Indenture and not in its individual capacity, or its successor in
interest in such capacity, or any successor Trustee appointed as
provided in the Indenture.
"Debentures" means the Depositor's 7.55% Junior Subordinated
Deferrable Interest Debentures, Series A, issued pursuant to the
Indenture.
"Definitive Trust Preferred Securities Certificates" means either
or both (as the context requires) of (i) Trust Preferred Securities
Certificates issued as Book-Entry Trust Preferred Securities
Certificates as provided in Section 5.2 or 5.4 and (ii) Trust Preferred
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.2, 5.4 or 5.5.
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"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended
from time to time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement, solely in its capacity
as Delaware Trustee of the trust heretofore formed and continued
hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor Delaware Trustee appointed
as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever
the reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer 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
(c) default by the Issuer Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Issuer Trustees in this
Trust Agreement (other than those specified in clause (b) or (c) 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 Issuer
Trustees and to the Depositor by the Holders of at least 25% in
aggregate 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
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee if a successor Property Trustee has not been appointed
within 90 days thereof.
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"Exchange Act" means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, as guarantee
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the holders of the Trust Preferred
Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities are registered in the Securities Register; any such Person
shall be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of
October 28, 1997, between the Depositor and the Debenture Trustee, as
trustee, as amended or supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940,
or any successor statute thereto, in each case as amended from time to
time.
"Issuer Trust" means the Delaware business trust known as "SCE&G
Trust I" which was formed on October 8, 1997 under the Delaware Business
Trust Act pursuant to the Original Trust Agreement and the filing of the
Certificate of Trust, and continued pursuant to this Trust Agreement.
"Issuer Trustees" has the meaning specified in the preamble to this
Trust Agreement.
"Letter of Representations" means the agreement among the Issuer
Trust, the Property Trustee and DTC, as the initial Clearing Agency,
dated as of the Closing Date, substantially in the form attached as
Exhibit B, as the same may be amended and supplemented from time to
time.
"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.
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"Like Amount" means (i) with respect to a redemption of any Trust
Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Debentures to be contemporaneously redeemed in
accordance with the Indenture, the proceeds of which will be used to pay
the Redemption Price of such Trust Securities, (ii) with respect to a
distribution of Debentures to Holders of Trust Securities in connection
with a dissolution or liquidation of the Issuer Trust, Debentures having
a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Debentures are distributed and
(iii) with respect to any distribution of Additional Amounts to Holders
of Trust Securities, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities in respect of which such
distribution is made.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date of the dissolution, winding-up or
termination of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section
9.4(d).
"Majority in Liquidation Amount of the Trust Preferred Securities"
or "Majority in Liquidation Amount of the Common Securities" means,
except as provided by the Trust Indenture Act, Trust Preferred
Securities or Common Securities, as the case may be, representing more
than 50% of the aggregate Liquidation Amount of all then Outstanding
Trust Preferred Securities or Common Securities, as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President, the Chief Executive Officer, the Chief
Financial Officer, any Vice President or the Treasurer and by the
Secretary or an Assistant Secretary of the Depositor and delivered to
the Issuer Trustees. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
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(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the
Depositor.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding," when used with respect to Trust Securities, means,
as of the date of determination, all Trust Securities theretofore
executed and delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent; provided that, if such Trust Securities are
to be redeemed, notice of such redemption has been duly given pursuant
to this Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, 5.6 and 5.11; provided, however, that in
determining whether the Holders of the requisite Liquidation Amount of
the Outstanding Trust Preferred Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Trust Preferred Securities owned by the Depositor, any Issuer Trustee or
any Affiliate of the Depositor or of any Issuer Trustee shall be
disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Issuer Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent
or waiver, only Trust Preferred Securities that such Issuer 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, one or more of the Issuer
Trustees and/or any such Affiliate. Trust Preferred Securities so owned
that 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 Book-Entry
Trust Preferred Securities 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).
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"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee for the benefit of the
Holders in which all amounts paid in respect of the Debentures will be
held and from which the Property Trustee, through the Paying Agent,
shall make payments to the Holders in accordance with Sections 4.1 and
4.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint
stock company, company, limited liability company, trust, unincorporated
association or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement, solely in its capacity
as Property Trustee of the trust heretofore formed and continued
hereunder and not in its individual capacity, and its successor in
interest in such capacity, or any successor Property Trustee appointed
as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this
Trust Agreement; provided that each Debenture Redemption Date and the
stated maturity of the Debentures shall be a Redemption Date for a Like
Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the
premium, if any, paid by the Depositor upon the concurrent redemption of
a Like Amount of Debentures.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer," when used with respect to the Property
Trustee or the Delaware Trustee, means the chairman or any vice-chairman
of the board of directors, the chairman or any vice-chairman of the
executive committee of the board of directors, the chairman of the trust
committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer
of the Property Trustee or the Delaware 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 his
knowledge of and familiarity with the particular subject.
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"Securities Act" means the Securities Act of 1933, and any
successor statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.5.
"Successor Trust Preferred Securities" of any particular Trust
Preferred Securities Certificate means every Trust Preferred Securities
Certificate issued after, and evidencing all or a portion of the same
beneficial interest in the Issuer Trust as that evidenced by, such
particular Trust Preferred Securities Certificate; and, for the purposes
of this definition, any Trust Preferred Securities Certificate executed
and delivered under Section 5.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Trust Preferred Securities
Certificate shall be deemed to evidence the same beneficial interest in
the Issuer Trust as the mutilated, destroyed, lost or stolen Trust
Preferred Securities Certificate.
"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 (i) all exhibits and (ii)
for all purposes of this Trust Agreement and any such modification,
amendment or supplement, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Preferred Securities Certificate" means a certificate
evidencing ownership of Trust Preferred Securities, substantially in the
form attached as Exhibit D.
"Trust Preferred Security" means a preferred undivided beneficial
interest in the assets of the Issuer 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 to the extent provided herein.
"Trust Property" means (i) the Debentures, (ii) any cash on deposit
in, or owing to, the Payment Account, and (iii) all proceeds and rights
in respect of the foregoing and any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to
the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Trust Preferred Securities.
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"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Trust Preferred Securities Certificates.
"Underwriters" means Credit Suisse First Boston and PaineWebber
Incorporated as the underwriters under the Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated
October 22, 1997, among the Issuer Trust, the Depositor and the
underwriter or underwriters named therein, as the same may be amended
from time to time.
"Vice President," when used with respect to the Depositor, means
any duly appointed vice president, whether or not designated by a number
or a word or words added before or after the title "vice president."
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.
The trust continued hereby shall be known as "SCE&G Trust I," as
such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and
the other Issuer Trustees, in which name the Issuer Trustees may conduct
the business of the Issuer Trust, make and execute contracts and other
instruments on behalf of the Issuer Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is
White Clay Center, Rte 273, Newark, Delaware 19711, Attention:
Corporate Trust Administration, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Holders, the Depositor, the Property Trustee and the Administrative
Trustees. The principal executive office of the Issuer Trust is South
Carolina Electric & Gas Company, 1426 Main Street, Columbia, South
Carolina 29201, Attention: Chief Financial Officer.
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Trust Agreement of the sum of
$10, which constituted the initial Trust Property. The Depositor shall
pay organizational expenses of the Issuer Trust as they arise or shall,
upon request of any Issuer Trustee, promptly reimburse such Issuer
Trustee for any such expenses paid by such Issuer Trustee. The Depositor
shall make no claim upon the Trust Property for the payment of such
expenses.
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SECTION 2.4. Issuance of the Trust Preferred Securities.
The Depositor, both on its own behalf and on behalf of the Issuer
Trust pursuant to the Original Trust Agreement, executed and delivered
the Underwriting Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, an Administrative Trustee, on behalf
of the Issuer Trust, shall manually execute in accordance with Sections
5.2, 5.3 and 8.9(a) and the Property Trustee shall deliver to the
Underwriters, Trust Preferred Securities Certificates, registered in the
names requested by the Underwriters, evidencing an aggregate of
2,000,000 Trust Preferred Securities having an aggregate Liquidation
Amount of $50,000,000, against receipt of the aggregate purchase price
of such Trust Preferred Securities of $50,000,000, by the Property
Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Issuer Trust,
shall execute in accordance with Sections 5.2, 5.3 and 8.9(a) and the
Property Trustee shall deliver to the Depositor, Common Securities
Certificates, registered in the name of the Depositor, evidencing an
aggregate of 61,856 Common Securities having an aggregate Liquidation
Amount of $1,546,000, against receipt of the aggregate purchase price of
such Common Securities of $1,546,000, to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the
Issuer Trust, shall subscribe for and purchase from the Depositor the
Debentures, registered in the name of the Property Trustee on behalf of
the Issuer Trust and having an aggregate principal amount equal to
$51,546,000, and, in satisfaction of the purchase price for such
Debentures, the Property Trustee, on behalf of the Issuer Trust, shall
deliver to the Depositor the sum of $51,546,000 (being the sum of the
amounts delivered to the Property Trustee pursuant to (i) the second
sentence of Section 2.4 and (ii) the first sentence of this Section
2.5).
SECTION 2.6. Continuation of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale to
acquire the Debentures and (b) to engage in those activities necessary
or incidental thereto. The Depositor hereby reaffirms the appointment of
the Delaware Trustee and appoints and reaffirms the appointment of, as
the case may be, the Administrative Trustees as trustees of the Issuer
Trust, to have all the rights, powers and duties to the extent set forth
herein, and the respective Issuer Trustees hereby accept such
appointment. The Property Trustee hereby declares that it will hold the
Trust Property in trust upon and subject to the conditions set forth
herein for the benefit of the Issuer Trust and the Holders. The
Administrative Trustees shall have all rights, powers and duties set
forth herein and in accordance with applicable law with respect to
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accomplishing the purposes of the Issuer Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Property
Trustee or the Administrative Trustees set forth herein. The Delaware
Trustee shall be one of the trustees of the Issuer Trust for the sole
and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act and for taking such actions as are
required to be taken by a Delaware trustee under the Delaware Business
Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees shall conduct the affairs of the Issuer
Trust in accordance with the terms of this Trust Agreement. Subject to
the limitations set forth in paragraph (b) of this Section and in
accordance with the following provisions (i) and (ii), the Issuer
Trustees shall have the authority to enter into all transactions and
agreements determined by the Issuer Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the
Issuer Trustees, as the case may be, under this Trust Agreement and to
perform all acts in furtherance thereof, including, without limitation,
the following:
(i) As among the Issuer Trustees, each Administrative
Trustee, acting singly or collectively, shall have the power and
authority to act on behalf of the Issuer Trust with respect to the
following matters:
(A) effecting the issuance and sale of the Trust
Securities;
(B) causing the Issuer Trust to enter into, and to
execute, deliver and perform, the Letter of Representations
and such other agreements as may be necessary or desirable in
connection with the purposes and function of the Issuer Trust;
(C) assisting in the registration of the Trust Preferred
Securities under the Securities Act, and under applicable
state securities or blue sky laws and the qualification of
this Trust Agreement as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the Trust Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor, with the registration of the
Trust Preferred Securities under the Exchange Act and with the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
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(E) assisting in the sending of notices (other than
notices of default) and other information regarding the Trust
Securities and the Debentures to the Holders in accordance
with this Trust Agreement;
(F) consenting to the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance
with this Trust Agreement (which consent shall not be
unreasonably withheld);
(G) executing the Trust Securities on behalf of the
Issuer Trust in accordance with this Trust Agreement;
(H) executing and delivering closing certificates, if
any, pursuant to the Underwriting Agreement and applying for
a taxpayer identification number for the Issuer Trust; and
(I) taking any action incidental to the foregoing as the
Issuer Trustees may from time to time determine to be
necessary or advisable to give effect to the terms of this
Trust Agreement.
(ii) As among the Issuer Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the Issuer
Trust with respect to the following matters:
(A) establishing the Payment Account;
(B) receiving the Debentures;
(C) collecting interest, principal and any other
payments made in respect of the Debentures and holding such
amounts in the Payment Account;
(D) distributing through the Paying Agent of amounts
distributable to the Holders in respect of the Trust
Securities;
(E) exercising all of the rights, powers and privileges
of a holder of the Debentures;
(F) sending notices of default and other information
regarding the Trust Securities and the Debentures to the
Holders in accordance with this Trust Agreement;
(G) distributing the Trust Property in accordance with
the terms of this Trust Agreement;
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(H) to the extent provided in this Trust Agreement,
winding up the affairs of and liquidation of the Issuer Trust
and the preparing, executing and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) performing the duties of the Property Trustee set
forth in this Trust Agreement;
(J) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such term
if such Event of Default is by or with respect to the Property
Trustee) taking any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary
or advisable to give effect to the terms of this Trust
Agreement and protect and conserve the Trust Property for the
benefit of the Holders (without consideration of the effect of
any such action on any particular Holder); and
(K) exercising any of the duties, liabilities, powers or
the authority of the Administrative Trustees set forth in
Section 2.7(a)(i)(E) and (I) herein; and in the event of a
conflict between the action of the Administrative Trustees and
the action of the Property Trustee, the action of the Property
Trustee shall prevail.
(b) So long as this Trust Agreement remains in effect, the Issuer
Trust (or the Issuer Trustees acting on behalf of the Issuer Trust)
shall not undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular, the
Issuer Trustees shall not (i) acquire any investments or engage in any
activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set off or otherwise dispose of
any of the Trust Property or interests therein, including to Holders,
except as expressly provided herein, (iii) take any action that would
reasonably be expected to cause the Issuer Trust to become taxable as a
corporation or classified as other than a grantor trust for United
States federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any
action that would result in the placement of a Lien on any of the Trust
Property. The Administrative 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 Issuer Trust or the Holders in
their capacity as Holders.
(c) In connection with the issue and sale of the Trust Preferred
Securities, the Depositor shall have the right and responsibility to
assist the Issuer Trust with respect to, or effect on behalf of, the
Issuer 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) the preparation and filing by the Issuer Trust with
the Commission and the execution on behalf of the Issuer Trust of
a registration statement on the appropriate form in relation to the
Trust Preferred Securities, including any amendments thereto and
the taking of any action necessary or desirable to sell the Trust
Preferred Securities in a transaction or a series of transactions
pursuant thereto;
(ii) the determination of the jurisdictions in which to
take appropriate action to qualify or register for sale all or part
of the Trust Preferred Securities and the taking of any and all
such acts, other than actions that must be taken by or on behalf of
the Issuer Trust, and advice to the Issuer Trust of actions that
must be taken by or on behalf of the Issuer Trust, and the
preparation for execution and filing of any documents to be
executed and filed by the Issuer Trust or on behalf of the Issuer
Trust, as the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such states in connection
with the sale of the Trust Preferred Securities;
(iii) the preparation for filing by the Issuer Trust and
execution on behalf of the Issuer Trust of an application or
applications to such securities exchange or exchanges as shall be
determined by Depositor for listing upon notice of issuance of any
Trust Preferred Securities;
(iv) the preparation for filing by the Issuer Trust with
the Commission and the execution on behalf of the Issuer Trust of
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) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing for the sale
of the Trust Preferred Securities; and
(vi) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Property
Trustee and the Administrative Trustees are authorized and directed to
conduct the affairs of the Issuer Trust and to operate the Issuer Trust
so that the Issuer Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company Act, and
will not be taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes and so that
the Debentures will be treated as indebtedness of the Depositor for
United States federal income tax purposes. In this connection, each
Administrative Trustee, the Property Trustee and the Holders of at least
a Majority in Liquidation Amount of the Common Securities are authorized
to take any action, not inconsistent with applicable law, the
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Certificate of Trust or this Trust Agreement, that such Administrative
Trustee, the Property Trustee or Holders of Common Securities determine
in their discretion to be necessary or desirable for such purposes, as
long as such action does not adversely affect in any material respect
the interests of the Holders of the Outstanding Trust Preferred
Securities. In no event shall the Issuer Trustees be liable to the
Issuer Trust or the Holders for any failure to comply with this section
that results from a change in law or regulation or in the interpretation
thereof.
SECTION 2.8. Assets of Trust.
The assets of the Issuer Trust shall consist of the Trust Property.
SECTION 2.9. 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 in trust for the benefit of the
Issuer Trust and the Holders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents 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
moneys and other property deposited or held from time to time in the
Payment Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders 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 of or interest on, and
any other payments or proceeds with respect to, the Debentures. Amounts
held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
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ARTICLE IV
REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests
in the Trust Property, and Distributions (including of Additional
Amounts) will be made on the Trust Securities at the rate and on the
dates that payments of interest (including of Additional Interest, as
defined in the Indenture) are made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of
the Issuer Trust available for the payment of Distributions.
Distributions shall accumulate from October 28, 1997, and, except
in the event (and to the extent) that the Depositor exercises its
right to defer the payment of interest on the Debentures pursuant
to the Indenture, shall be payable quarterly in arrears on March
31, June 30, September 30 and December 31 of each year, commencing
on December 31, 1997. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business Day,
then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day (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, the 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 the date on which such payment was originally payable (each
date on which distributions are payable in accordance with this
Section 4.1(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to Distributions
payable at a rate of 7.55% per annum of the Liquidation Amount of
the Trust Securities. The amount of Distributions payable for any
period less than a full Distribution period shall be computed on
the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in a partial month in a period.
Distributions payable for each full Distribution period will be
computed by dividing the rate per annum by four. The amount of
Distributions payable for any period shall include any Additional
Amounts in respect of such period.
(iii) Distributions on the Trust Securities shall be made
by the Property Trustee from the Payment Account and shall be
payable on each Distribution Date only to the extent that the
Issuer Trust has funds then on hand and available in the Payment
Account for the payment of such Distributions.
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(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear
on the Securities Register for the Trust Securities at the close of
business on the relevant record date, which shall be at the close of
business on the fifteenth day (whether or not a Business Day) next
preceding the relevant Distribution Date.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity
of the Debentures, the Issuer 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. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, an
estimate of the Redemption Price together with a statement that it
is an estimate and that the actual Redemption Price will be
calculated on the third Business Day prior to the Redemption Date
(and if an estimate is provided, a further notice shall be sent of
the actual Redemption Price on the date that such Redemption Price
is calculated);
(iii) the CUSIP number or CUSIP numbers of the Trust
Preferred Securities affected (if applicable);
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the aggregate Liquidation
Amount of the particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accumulate on and
after said date, except as provided in Section 4.2(d) below; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Property Trustee
shall indicate the "CUSIP" numbers of the Trust Securities in notices of
redemption and related materials as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Trust Securities or
as contained in any notice of redemption and related materials.
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(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on
each Redemption Date only to the extent that the Issuer Trust has funds
then on hand and available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Trust Preferred Securities, then, by 12:00 noon, New York
City time, on the Redemption Date, subject to Section 4.2(c), the
Property Trustee will, with respect to Book-Entry Trust Preferred
Securities, irrevocably deposit with the Clearing Agency for such Book-
Entry Trust Preferred Securities, to the extent available therefor,
funds sufficient to pay the applicable Redemption Price and will give
such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Trust Preferred Securities. With
respect to Trust Preferred Securities that are not Book-Entry Trust
Preferred Securities, the Property Trustee, subject to Section 4.2(c),
will irrevocably deposit with the Paying Agent, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and
will give the Paying Agent irrevocable instructions and authority to pay
the Redemption Price to the Holders of the Trust Preferred Securities
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
Securities Register for the Trust Securities on the relevant record
dates for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then upon the date of
such deposit, all rights of Holders holding Trust Securities so called
for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect of the
Trust Securities on or prior to the Redemption Date, 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 will be
made on the next succeeding day that is a Business Day (without any
interest or other payment in respect of any such delay), except that, if
such Business Day falls in the next calendar year, such payment will 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 any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the
Issuer Trust or by the Depositor pursuant to the Guarantee Agreement,
Distributions on such Trust Securities will continue to accumulate, as
set forth in Section 4.1, from the Redemption Date originally
established by the Issuer Trust for such Trust Securities to the date
such Redemption Price is actually paid, in which case the actual payment
date will be the date fixed for redemption for purposes of calculating
the Redemption Price.
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(e) Subject to the priority provisions of Section 4.3(a), if less
than all the Outstanding Trust Securities are to be redeemed on a
Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated pro rata to the Common
Securities and the Trust Preferred Securities based upon the relative
Liquidation Amounts of such classes. The particular Trust Preferred
Securities to be redeemed shall be selected on a pro rata basis based
upon their respective Liquidation Amounts 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, provided that
so long as the Trust Preferred Securities are in book-entry-only form,
such selection shall be made in accordance with the customary procedures
for the Clearing Agency for the Trust Preferred Securities. The Property
Trustee shall promptly notify the Securities 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 aggregate Liquidation Amount of
Trust Preferred Securities that has been or is to be redeemed.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Amounts)
on, the Redemption Price of, and the Liquidation Distribution in respect
of the Trust Securities, as applicable, shall be made, subject to the
allocation provisions of Section 4.2(e), pro rata among the Common
Securities and the Trust Preferred Securities based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any
Distribution Date, Redemption Date or Liquidation Date any Event of
Default resulting from a Debenture Event of Default specified in Section
5.1(a) or 5.1(b) of the Indenture shall have occurred and be continuing,
no payment of any Distribution (including any Additional Amounts) on,
Redemption Price of, or Liquidation Distribution in respect of any
Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid
Distributions (including any Additional Amounts) 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 then called for redemption, or in the case of payment of the
Liquidation Distribution the full amount of such Liquidation
Distribution on all Outstanding Trust Preferred Securities, shall have
been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash
of all Distributions (including any Additional Amounts) on, or the
Redemption Price of, the Trust Preferred Securities then due and
payable.
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(b) In the case of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holders of the Common
Securities shall have no right to act with respect to 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 all 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 on behalf of the Holders of the 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 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) in
respect of the Trust Preferred Securities shall be made by check mailed
to the address of the Person entitled thereto as such address shall
appear on the Securities Register or, if the Trust Preferred Securities
are held by a Clearing Agency, such Distributions shall be made to the
Clearing Agency in immediately available funds. Payments in respect of
the Common Securities shall be made in such manner as shall be mutually
agreed between the Property Trustee and the Holders of the Common
Securities.
SECTION 4.5. Tax Returns and Reports.
The Administrative Trustees 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 Issuer Trust. In this
regard, the Administrative Trustees shall (i) prepare and file (or cause
to be prepared and filed) all Internal Revenue Service forms required to
be filed in respect of the Issuer Trust in each taxable year of the
Issuer Trust and (ii) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to
be provided by the Issuer Trust. The Administrative Trustees shall
provide the Depositor and the Property Trustee with a copy of all such
returns and reports promptly after such filing or furnishing. The
Issuer Trustees shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with
respect to any payments to Holders under the Trust Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Debentures of Additional Sums, the Property
Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Issuer
Trust by the United States or any other taxing authority, which were
included in such Additional Sums.
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SECTION 4.7. Payments under Indenture or Pursuant to Direct
Actions.
Any amount payable hereunder to any Holder of Trust Preferred
Securities with respect thereto shall be reduced by the amount of any
corresponding payment such Holder (or any Owner) has directly received
pursuant to Section 5.8 of the Indenture or Section 5.13 of this Trust
Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the creation of the Issuer Trust and the contribution by the
Depositor pursuant to Section 2.3 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
Issuer Trust.
SECTION 5.2. The Trust Securities Certificates.
(a) The Trust Preferred Securities Certificates shall be issued in
minimum denominations of $25 Liquidation Amount and integral multiples
of $25 in excess thereof and the Common Securities Certificates shall be
issued in denominations of $25 Liquidation Amount and integral multiples
thereof. The Trust Securities Certificates shall be executed on behalf
of the Issuer Trust by manual signature of at least one Administrative
Trustee. Trust Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Issuer Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased
to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of
such Trust Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Holder and shall be entitled to the rights
and subject to the obligations of a Holder hereunder upon due
registration of such Trust Securities Certificate in such transferee's
name pursuant to Section 5.5.
(b) Upon their original issuance, Trust Preferred Securities
Certificates shall be issued in the form of one or more Book-Entry Trust
Preferred Securities Certificates registered in the name of DTC, as
Clearing Agency, or its nominee and deposited with DTC or a custodian
for DTC for credit by DTC to the respective accounts of the Owners
thereof (or such other accounts as they may direct).
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
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SECTION 5.3. Execution and Delivery of Trust Securities
Certificates.
On the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided
in Sections 2.4 and 2.5, to be executed on behalf of the Issuer Trust
and delivered to or upon the written order of the Depositor, executed by
one authorized officer thereof, without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.4. Book-Entry Trust Preferred Securities.
(a) Each Book-Entry Trust Preferred Securities Certificate issued
under this Trust Agreement shall be registered in the name of the
Clearing Agency or a nominee thereof and delivered to such Clearing
Agency or a nominee thereof or custodian therefor and each such Book-
Entry Trust Preferred Securities Certificate shall constitute a single
Trust Preferred Securities Certificate for all purposes of this
Agreement.
(b) Notwithstanding any other provision in this Trust Agreement,
no Book-Entry Trust Preferred Securities Certificate may be exchanged in
whole or in part for Trust Preferred Securities Certificates registered,
and no transfer of a Book-Entry Trust Preferred Securities Certificate
in whole or in part may be registered, in the name of any Person other
than the Clearing Agency for such Book-Entry Trust Preferred Securities
Certificates or a nominee thereof unless (i) the Clearing Agency advises
the Issuer Trust in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect
to the Book-Entry Trust Preferred Securities Certificates, and is unable
to locate a qualified successor or a qualified successor shall not have
been appointed, or the Clearing Agency ceases to be a clearing agency
registered under the Exchange Act at a time when it is required to be so
registered to act as such clearing agent, (ii) the Issuer Trust at its
option determines that a Book Entry Trust Preferred Securities
Certificate shall be so exchangeable or (iii) a Debenture Event of
Default has occurred and is continuing. Upon the occurrence of any event
specified in clause (i), (ii) or (iii) above, the Property Trustee shall
notify the Clearing Agency and instruct the Clearing Agency to notify
all Owners of Book-Entry Trust Preferred Securities, the Delaware
Trustee and the Administrative Trustees of the occurrence of such event
and of the availability of the Definitive Trust Preferred Securities
Certificates to Owners of such class or classes, as applicable,
requesting the same.
(c) If any Book-Entry Trust Preferred Securities Certificate is to
be exchanged for other Trust Preferred Securities Certificates or
cancelled in part, or if any other Trust Preferred Securities
Certificate is to be exchanged in whole or in part for Book-Entry Trust
Preferred Securities represented by a Book-Entry Trust Preferred
Securities Certificate, then either (i) such Book-Entry Trust Preferred
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Securities Certificate shall be so surrendered for exchange or
cancellation as provided in this Article V or (ii) the aggregate
Liquidation Amount represented by such Book-Entry Trust Preferred
Securities Certificate shall be reduced, subject to Section 5.2, or
increased by an amount equal to the Liquidation Amount represented by
that portion of the Book-Entry Trust Preferred Securities Certificate to
be so exchanged or cancelled, or equal to the Liquidation Amount
represented by such other Trust Preferred Securities Certificates to be
so exchanged for Book-Entry Trust Preferred Securities represented
thereby, as the case may be, by means of an appropriate adjustment made
on the records of the Securities Registrar, whereupon the Property
Trustee, in accordance with the Applicable Procedures, shall instruct
the Clearing Agency or its authorized representative to make a
corresponding adjustment to its records. Upon surrender to the
Administrative Trustees or the Securities Registrar of the Book-Entry
Trust Preferred Securities Certificate or Certificates by the Clearing
Agency, accompanied by registration instructions, the Administrative
Trustees, or any one of them, shall execute the Definitive Trust
Preferred Securities Certificates in accordance with the instructions of
the Clearing Agency. None of the Securities Registrar, the Issuer
Trustees or the Administrative 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 Issuer Trustees
shall recognize the Holders of the Definitive Trust Preferred Securities
Certificates as Holders. 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.
(d) Every Trust Preferred Securities Certificate executed and
delivered upon registration of transfer of, or in exchange for or in
lieu of, a Book-Entry Trust Preferred Securities Certificate or any
portion thereof, whether pursuant to this Article V or Article IV or
otherwise, shall be executed and delivered in the form of, and shall be,
a Book-Entry Trust Preferred Securities Certificate, unless such Trust
Preferred Securities Certificate is registered in the name of a Person
other than the Clearing Agency for such Book-Entry Trust Preferred
Securities Certificate or a nominee thereof.
(e) The Clearing Agency or its nominee, as registered owner of a
Book-Entry Trust Preferred Securities Certificate, shall be the Holder
of such Book-Entry Trust Preferred Securities Certificate for all
purposes under this Agreement and the Book-Entry Trust Preferred
Securities Certificate and Owners with respect to a Book-Entry Trust
Preferred Securities Certificate shall hold such interests pursuant to
the Applicable Procedures. The Securities Registrar and the Issuer
Trustees shall be entitled to deal with the Clearing Agency for all
purposes of this Trust Agreement relating to the Book-Entry Trust
Preferred Securities Certificates (including the payment of the
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Liquidation Amount of and Distributions on the Book-Entry Trust
Preferred Securities represented thereby and the giving of instructions
or directions by Owners of Book-Entry Trust Preferred Securities
represented thereby) as the sole Holder of the Book-Entry Trust
Preferred Securities represented thereby and shall have no obligations
to the Owners thereof. None of the Issuer Trustees nor the Securities
Registrar shall have any liability in respect of any transfers effected
by the Clearing Agency.
The rights of the Owners of the Book-Entry Trust Preferred
Securities shall be exercised only through the Clearing Agency and shall
be limited to those established by law, the Applicable Procedures and
agreements between such Owners and the Clearing Agency and/or the
Clearing Agency Participants. Pursuant to the Letter of Representations,
unless and until Definitive Trust Preferred Securities Certificates are
issued pursuant to Section 5.4(b), the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit payments on the Trust Preferred Securities to such Clearing
Agency Participants and none of the Depositor or the Issuer Trustees
shall have any responsibility or obligation with respect thereto.
SECTION 5.5. Registration of Transfer and Exchange of Trust
Preferred Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 5.9, a register or
registers for the purpose of registering Trust Securities Certificates
and transfers and exchanges of Trust Securities Certificates (the
"Securities Register") in which the registrar and transfer agent with
respect to the Trust Securities (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Trust Preferred Securities Certificates and Common
Securities Certificates (subject to Section 5.11 in the case of the
Common Securities Certificates) and registration of transfers and
exchanges of Trust Preferred Securities Certificates as herein provided.
The Person acting as the Property Trustee shall at all times also be the
Securities Registrar.
Upon surrender for registration of transfer of any Trust Preferred
Securities Certificate at the office or agency maintained pursuant to
Section 5.9, the Administrative Trustees or any one of them shall
execute and deliver to the Property Trustee, and the Property Trustee
shall deliver, in the name of the designated transferee or transferees,
one or more new Trust Preferred Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount dated the date of
execution by such Administrative Trustee or Trustees.
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The Securities Registrar shall not be required (i) to issue,
register the transfer of or exchange any Trust Preferred Security during
a period beginning at the opening of business 15 days before the day of
selection for redemption of such Trust Preferred Securities pursuant to
Article IV and ending at the close of business on the day of mailing of
the notice of redemption or (ii) to register the transfer of or exchange
any Trust Preferred Security so selected for redemption in whole or in
part, except, in the case of any such Trust Preferred Security to be
redeemed in part, any portion thereof not to be redeemed.
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
an Administrative Trustee and the Securities Registrar duly executed by
the Holder or its attorney duly authorized in writing. Each Trust
Preferred Securities Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by
the Property Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Trust Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer
or exchange of Trust Preferred Securities Certificates.
(b) Notwithstanding any other provision of this Agreement,
transfers and exchanges of Trust Preferred Securities Certificates and
beneficial interests in a Book-Entry Trust Preferred Securities
Certificate of the kinds specified in this Section 5.5(b) shall be made
only in accordance with this Section 5.5(b).
(i) Non-Book-Entry Trust Preferred Securities Certificate to
Book-Entry Trust Preferred Securities Certificate. If the Holder of
a Trust Preferred Securities Certificate (other than a Book-Entry
Trust Preferred Securities Certificate) wishes at any time to
transfer all or any portion of such Trust Preferred Securities
Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in a Book-Entry Trust Preferred
Securities Certificate, such transfer may be effected only in
accordance with the provisions of this Clause (b)(i) and subject to
the Applicable Procedures. Upon receipt by the Securities Registrar
of such Trust Preferred Securities Certificate as provided in
Section 5.5(a) and instructions satisfactory to the Securities
Registrar directing that a beneficial interest in the Book-Entry
Trust Preferred Securities Certificate of a specified number of
Trust Preferred Securities not greater than the number of Trust
Preferred Securities represented by such Trust Preferred Securities
Certificate be credited to a specified Clearing Agency
Participant's account, then the Securities Registrar shall cancel
such Trust Preferred Securities Certificate (and issue a new Trust
Preferred Securities Certificate in respect of any untransferred
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portion thereof) as provided in Section 5.5(a) and increase the
aggregate Liquidation Amount of the Book-Entry Trust Preferred
Securities Certificate by the Liquidation Amount represented by
such Trust Preferred Securities so transferred as provided in
Section 5.4(c).
(ii) Non-Book-Entry Trust Preferred Securities Certificate to
Non-Book-Entry Trust Preferred Securities Certificate. A Trust
Preferred Securities Certificate that is not a Book-Entry Trust
Preferred Securities Certificate may be transferred, in whole or in
part, to a Person who takes delivery in the form of another Trust
Preferred Securities Certificate that is not a Book-Entry Trust
Preferred Securities Certificate as provided in Section 5.5(a).
(iii) Exchanges between Book-Entry Trust Preferred
Securities Certificate and Non-Book-Entry Trust Preferred
Securities Certificate. A beneficial interest in a Book-Entry Trust
Preferred Securities Certificate may be exchanged for a Trust
Preferred Securities Certificate that is not a Book-Entry Trust
Preferred Securities Certificate as provided in Section 5.4.
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.
If (i) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar
shall receive evidence to its satisfaction of the destruction, loss or
theft of any Trust Securities Certificate and (ii) there shall be
delivered to the Securities 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 Issuer
Trust shall execute 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 5.6, the
Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Trust
Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of
the Issuer Trust corresponding to that evidenced by the lost, stolen or
destroyed Trust Securities Certificate, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate shall
be found at any time.
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SECTION 5.7. Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall each treat
the Person in whose name any Trust Securities Certificate shall be
registered in the Securities Register as the owner of such Trust
Securities Certificate for the purpose of receiving Distributions and
for all other purposes whatsoever, and none of the Issuer Trustees and
the Securities Registrar shall be bound by any notice to the contrary.
SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee, the Delaware Trustee 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 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrative Trustees, which consent shall not be unreasonably
withheld, 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 Issuer
Trustees in respect of the Trust Securities Certificates may be served.
The Administrative Trustees initially designate South Carolina Electric
& Gas Company, 1426 Main Street, Columbia, South Carolina 29201
Attention: Treasurer, as its office and agency for such purposes. The
Property Trustee shall give prompt written notice to the Depositor, the
Administrative Trustees and to the Holders of any change in the location
of the Securities Register or any such office or agency.
SECTION 5.10. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the
Payment Account and shall report the amounts of such Distributions to
the Property Trustee and the Administrative Trustees. Any Paying Agent
shall have the revocable power to withdraw funds from the Payment
Account solely for the purpose of making the Distributions referred to
above. The Administrative Trustees may revoke such power and remove the
Paying Agent in their sole discretion. The Paying Agent shall initially
be the Bank. 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 Property Trustee. If the Bank shall no
longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall
appoint a successor (which shall be a bank or trust company) to act as
Paying Agent.
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Such successor Paying Agent or any additional Paying Agent appointed by
the Administrative Trustees shall execute and deliver to the Issuer
Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Issuer 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 Holders in
trust for the benefit of the Holders entitled thereto until such sums
shall be paid to such Holders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein
shall apply to the Bank also in its role as Paying Agent, for so long as
the Bank shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement
to the Paying Agent shall include any co-paying agent unless the context
requires otherwise.
SECTION 5.11. Ownership of Common Securities by Depositor.
On the Closing Date, the Depositor shall acquire, and thereafter
shall retain, beneficial and record ownership of the Common Securities.
The Depositor may not transfer the Common Securities except (i) in
connection with a consolidation or merger of the Depositor into another
Person or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person
pursuant to Section 8.1 of the Indenture or (ii) to the Depositor or an
Affiliate thereof in compliance with applicable law (including the
Securities Act, and applicable state securities and blue sky laws). To
the fullest extent permitted by law, any attempted transfer of the
Common Securities other than as set forth in the next proceeding
sentence shall be void. The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a
legend stating substantially "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE
WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT."
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders
is required under this Trust Agreement, for so long as Trust Preferred
Securities are represented by a Book-Entry Trust Preferred Securities
Certificate, the Issuer Trustees shall give all such notices and
communications specified herein to be given to the Clearing Agency and
shall have no obligations to the Owners.
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SECTION 5.13. Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with
Section 2.9 and the Holders shall not have any right or title therein
other than the undivided beneficial interest in the assets of the Issuer
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 Issuer 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 similar rights and when issued and delivered to Holders
against payment of the purchase price therefor will be fully paid and
nonassessable by the Issuer Trust. The Holders of the Trust Securities,
in their capacities as such, shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware.
(b) For so long as any Trust Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture
Trustee fails or the holders of not less than 25% in principal amount of
the outstanding Debentures fail to declare the principal of all of the
Debentures to be immediately due and payable, the Holders of at least
25% in Liquidation Amount of the Trust Preferred Securities then
Outstanding shall have the right to make such declaration by a notice in
writing to the Property Trustee, the Depositor and the Debenture
Trustee.
At any time after a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of
the money due has been obtained by the Debenture Trustee as in the
Indenture provided, if the Property Trustee fails to annul any such
declaration and waive such default, the Holders of at least a Majority
in Liquidation Amount of the Trust Preferred Securities, by written
notice to the Property Trustee, the Depositor and the Debenture Trustee,
may rescind and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest on all of the
Debentures,
(B) any accrued Additional Interest on all of the
Debentures,
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(C) the principal of (and premium, if any, on) any
Debentures that have become due otherwise than by such
declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Debentures, and
(D) all sums paid or advanced by the Debenture Trustee
under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Debenture Trustee and the
Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures that
has become due solely by such acceleration, have been cured or
waived as provided in Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the
Trust Preferred Securities may, on behalf of the Holders of all the
Trust Preferred Securities, waive any past default under the Indenture,
except a default in the payment of principal or interest (unless such
default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default
in respect of a covenant or provision that under the Indenture cannot be
modified or amended without the consent of the holder of each
outstanding Debenture. No such rescission shall affect any subsequent
default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, by Holders of
any part of the Trust Preferred Securities a record date shall be
established for determining Holders of Outstanding Trust Preferred
Securities entitled to join in such notice, which record date shall be
at the close of business on the day the Property Trustee receives such
notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record
date; provided, that, unless such declaration of acceleration, or
rescission and annulment, as the case may be, shall have become
effective by virtue of the requisite percentage having joined in such
notice prior to the day that is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as
the case may be, shall automatically and without further action by any
Holder be canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder or a proxy of a Holder from giving, after
expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be,
that is identical to a written notice that has been canceled pursuant to
the proviso to the preceding sentence, in which event a new record date
shall be established pursuant to the provisions of this Section 5.13(b).
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(c) For so long as any Trust Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the
terms of this Trust Agreement and the Indenture, upon a Debenture Event
of Default specified in Section 5.1(a) or 5.1(b) of the Indenture, any
Holder of Trust Preferred Securities shall have the right to institute
a proceeding directly against the Depositor, pursuant to Section 5.8 of
the Indenture, for enforcement of payment to such Holder of any amounts
payable in respect of Debentures having an aggregate principal amount
equal to the aggregate Liquidation Amount of the Trust Preferred
Securities of such Holder (a "Direct Action"). Except as set forth in
Section 5.13(b) and this Section 5.13(c), the Holders of Trust Preferred
Securities shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the Debentures.
(d) Except as otherwise provided in clauses (a), (b) and (c) of
this Section 5.13, the Holders of at least a Majority in Liquidation
Amount of the Trust Preferred Securities may, on behalf of the Holders
of all the Trust Preferred Securities, waive any past default or Event
of Default and its consequences. Upon such waiver, any such default or
Event of Default shall cease to exist and any default or Event of
Default arising therefrom shall be deemed to have been cured for every
purpose of this Trust Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in
the 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
Issuer 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 Holders
from time to time as partners or members of an association.
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(b) So long as any Debentures are held by the Property Trustee on
behalf of the Issuer Trust, the Property Trustee shall not (i) direct
the time, method and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or execute any trust or power
conferred on the Property Trustee with respect to the Debentures, (ii)
waive any past default that may be waived under Section 5.13 of the
Indenture, (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders of at
least a Majority in Liquidation Amount of the Trust Preferred
Securities; provided, however, that where a consent under the Indenture
would require the consent of each Holder of Debentures affected thereby,
no such consent shall be given by the Property Trustee without the prior
written consent of each Holder of Trust Preferred Securities. The
Property Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Trust Preferred Securities,
except by a subsequent vote of the Holders of the Trust Preferred
Securities. The Property Trustee shall notify all Holders of the Trust
Preferred Securities of any notice of default received with respect to
the Debentures. In addition to obtaining the foregoing approvals of the
Holders of the Trust Preferred Securities, prior to taking any of the
foregoing actions, the Property Trustee shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to
the effect that such action shall not cause the Issuer Trust to be
taxable as a corporation or classified as other than a grantor trust for
United States federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for,
or the Issuer Trustees otherwise propose to effect, (i) any action that
would adversely affect in any material respect the powers, preferences
or special rights of the Trust Preferred Securities, whether by way of
amendment to this Trust Agreement or otherwise or (ii) the dissolution,
winding-up or termination of the Issuer Trust, other than pursuant to
the terms of this Trust Agreement, then the Holders of Outstanding Trust
Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority
in Liquidation Amount of the Trust Preferred Securities. Notwithstanding
any other provision of this Trust Agreement, no amendment to this Trust
Agreement may be made if, as a result of such amendment, it would cause
the Issuer Trust to be taxable as a corporation or classified as other
than a grantor trust for United States federal income tax purposes.
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SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Holders of the Trust Preferred
Securities, stating the time, place and purpose of the meeting, shall be
given by the Property Trustee pursuant to Section 10.8 to each Holder of
Trust Preferred Securities, at such Holder's registered address, at
least 15 days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so considered
whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
SECTION 6.3. Meetings of Holders of the Trust Preferred
Securities.
No annual meeting of Holders is required to be held. The
Administrative Trustees, however, shall call a meeting of the Holders of
the Trust Preferred Securities to vote on any matter upon the written
request of the Holders of at least 25% in aggregate Liquidation Amount
of the Outstanding Trust Preferred Securities and the Administrative
Trustees or the Property Trustee may, at any time in their discretion,
call a meeting of the Holders of the Trust Preferred Securities to vote
on any matters as to which such Holders are entitled to vote.
The Holders of at least a Majority in Liquidation Amount of the
Trust Preferred Securities, present in person or by proxy, shall
constitute a quorum at any meeting of the Holders of the Trust Preferred
Securities.
If a quorum is present at a meeting, an affirmative vote by the
Holders present, in person or by proxy, holding Trust Preferred
Securities representing at least a Majority in aggregate Liquidation
Amount of the Trust Preferred Securities held by the Holders present,
either in person or by proxy, at such meeting shall constitute the
action of the Holders of the Trust Preferred Securities, unless this
Trust Agreement requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Holders shall be entitled to one vote for each $25 of Liquidation
Amount represented by their Outstanding Trust Securities in respect of
any matter as to which such Holders are entitled to vote.
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SECTION 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may
vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Issuer 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 Holders
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
Holder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date
of execution.
SECTION 6.6. Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken
without a meeting if Holders holding at least a Majority in Liquidation
Amount of all Trust Preferred Securities entitled to vote in respect of
such action (or such larger proportion thereof as shall be required by
any other provision of this Trust Agreement) shall consent to the action
in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders 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 or Property Trustee may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Holders or the payment
of a distribution or other action, as the case may be, as a record date
for the determination of the identity of the Holders of record for such
purposes.
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SECTION 6.8. Acts of Holders.
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 Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and, except
as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to an
Administrative Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Trust Agreement
and (subject to Section 8.1) conclusive in favor of the Issuer Trustees,
if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner that any Issuer Trustee receiving the same deems
sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Trust Security shall bind every
future Holder of the same Trust Security and the Holder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Issuer Trustees or the Issuer Trust in
reliance thereon, whether or not notation of such action is made upon
such Trust Security.
Without limiting the foregoing, a Holder 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.
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If any dispute shall arise among the Holders or the Issuer Trustees
with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act
of such Holder or Issuer Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be conclusive
with respect to such matter.
SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Issuer Trust shall be open to
inspection by Holders during normal business hours for any purpose
reasonably related to such Holder's interest as a Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on
behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Holders that:
(a) the Property Trustee is a corporation, duly organized, validly
existing and in good standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking corporation;
(d) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of each of the
Property Trustee and the Delaware Trustee enforceable against each of
them in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
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(f) the execution, delivery and performance of this Trust
Agreement has been duly authorized by all necessary corporate or other
action on the part of the Property Trustee and the Delaware Trustee and
does not require any approval of stockholders of the Property Trustee or
the Delaware Trustee and such execution, delivery and performance will
not (i) violate the Charter or By-laws of the Property Trustee or the
Delaware Trustee, (ii) violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in the
creation or imposition of, any Lien on any properties included in the
Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the
Property Trustee or the Delaware Trustee is a party or by which it is
bound or (iii) violate any law, governmental rule or regulation of the
United States or the State of Delaware, as the case may be, governing
the banking, trust or general powers of the Property Trustee or the
Delaware Trustee (as appropriate in context) or any order, judgment or
decree applicable to the Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee or the
Delaware Trustee (as appropriate in context) contemplated herein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing law of the United
States or the State of Delaware governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee, as the case may
be; and
(h) there are no proceedings pending or, to the best of each of
the Property Trustee's and the Delaware Trustee's knowledge, threatened
against or affecting the Property Trustee or the Delaware Trustee in any
court or before any governmental authority, agency or arbitration board
or tribunal that, individually or in the aggregate, would materially and
adversely affect the Issuer Trust or would question the right, power and
authority of the Property Trustee or the Delaware Trustee, as the case
may be, to enter into or perform its obligations as one of the Issuer
Trustees under this Trust Agreement.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued on behalf of the
Issuer Trust have been duly authorized and will have been duly and
validly executed, issued and delivered by the Issuer Trustees pursuant
to the terms and provisions of, and in accordance with the requirements
of, this Trust Agreement and the Holders will be, as of each such date,
entitled to the benefits of this Trust Agreement; and
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(b) there are no taxes, fees or other governmental charges payable
by the Issuer Trust (or the Issuer Trustees on behalf of the Issuer
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 ISSUER TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees shall
be as provided by this Trust Agreement and, in the case of the Property
Trustee, by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require any of the Issuer
Trustees to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it. 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 Issuer Trustees shall be
subject to the provisions of this Section 8.1. Nothing in this Trust
Agreement shall be construed to release an Administrative Trustee from
liability for his or her own grossly negligent action, his or her own
negligent failure to act, or his or her own willful misconduct. To the
extent that, at law or in equity, an Issuer Trustee has duties and
liabilities relating to the Issuer Trust or to the Holders, such Issuer
Trustee shall not be liable to the Issuer Trust or to any Holder for
such Issuer Trustee's good faith reliance on the provisions of this
Trust Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of the Issuer Trustees
otherwise existing at law or in equity, are agreed by the Depositor and
the Holders to replace such other duties and liabilities of the Issuer
Trustees.
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(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall
be sufficient revenue or proceeds from the Trust Property to enable the
Property Trustee or a Paying Agent to make payments in accordance with
the terms hereof. Each Holder, by its acceptance of a Trust Security,
agrees that it will look solely to the revenue and proceeds from the
Trust Property to the extent legally available for distribution to it as
herein provided and that the Issuer Trustees are not personally liable
to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section
8.1(b) does not limit the liability of the Issuer Trustees expressly set
forth elsewhere in this Trust Agreement or, in the case of the Property
Trustee, in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Trust Agreement (including pursuant to
Section 10.10), and no implied covenants shall be read into this Trust
Agreement against the Property Trustee. If an Event of Default has
occurred (that has not been cured or waived pursuant to Section 5.13,
the Property Trustee shall exercise such of the rights and powers vested
in it by this Trust 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 Trust Agreement shall be construed to
relieve the Property Trustee or the Delaware 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:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of this
Trust Agreement (including pursuant to Section 10.10), and the
Property Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Trust Agreement (including pursuant to
Section 10.10); and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Trust Agreement; but in the case of any
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such certificates or opinions that by any provision hereof or
of the Trust Indenture Act are specifically required to be
furnished to the Property Trustee, the Property Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Trust Agreement.
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of at least
a Majority 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 Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under this Trust
Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures
and the Payment Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property
for its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust
Agreement and the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with
the Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to
Section 3.1 and except to the extent otherwise required by law;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement,
nor shall the Property Trustee be liable for the default or
misconduct of any other Issuer Trustee or the Depositor; and
(vii) No provision of this Trust Agreement shall require
the Property Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if the
Property Trustee shall have reasonable grounds for believing that
the repayment of such funds or liability is not reasonably assured
to it under the terms of this Trust Agreement or adequate indemnity
against such risk or liability is not reasonably assured to it.
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(e) The Administrative Trustees shall not be responsible for
monitoring the compliance by the other Issuer Trustees or the Depositor
with their respective duties under this Trust Agreement, nor shall
either Administrative Trustee be liable for the default or misconduct of
any other Administrative Trustee, the other Issuer Trustees or the
Depositor.
SECTION 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee
shall transmit, in the manner and to the extent provided in Section
10.8, notice of such Event of Default to the Holders, the Administrative
Trustees and the Depositor, unless such Event of Default shall have been
cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on
the Debentures pursuant to the Indenture, the Administrative Trustees
shall transmit, in the manner and to the extent provided in Section
10.8, notice of such exercise to the Holders, unless such exercise shall
have been revoked.
The Property Trustee shall not be deemed to have knowledge of any
Event of Default unless the Property Trustee shall have received written
notice or a Responsible Officer of the Property Trustee charged with the
administration of this Trust Agreement shall have obtained actual
knowledge of such Event of Default.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) 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,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of
action, (ii) in construing any of the provisions of this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (iii) the Property Trustee is
unsure of the application of any provision of this Trust Agreement,
then, except as to any matter as to which the Holders of the Trust
Preferred Securities are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
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requesting the Depositor's opinion as to the course of action to be
taken and 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 Holders, in which
event the Property Trustee shall have no liability except for its own
bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor contemplated by this
Trust Agreement shall be sufficiently evidenced by an Officers'
Certificate;
(d) any direction or act of an Administrative Trustee contemplated
by this Trust Agreement shall be sufficiently evidenced by a certificate
executed by such Administrative Trustee and setting forth such direction
or act;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or re-registration
thereof;
(f) the Property Trustee may consult with counsel of its selection
(which counsel may be counsel to the Depositor or any of its Affiliates,
and may include any of its employees) and the advice of such counsel
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon and in accordance with such advice; the Property
Trustee shall have the right at any time to seek instructions concerning
the administration of this Trust Agreement from any court of competent
jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the
request or direction of any of the Holders pursuant to this Trust
Agreement, unless such Holders shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request
or direction; provided that, nothing contained in this Section 8.3(g)
shall be taken to relieve the Property Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise the rights and powers
vested in it by this Trust Agreement;
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(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to
do so by one or more Holders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may
see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, provided that the Property Trustee
shall be responsible for its own negligence or misconduct with respect
to selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders (which instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Trust Securities as would be
entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action), (ii) may refrain
from enforcing such remedy or right or taking such other action until
such instructions are received and (iii) shall be protected in acting in
accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this Trust
Agreement.
No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on any Issuer 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 such
Person 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 any Issuer Trustee shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Issuer Trust and
the Depositor, and the Issuer Trustees do not assume any responsibility
for their correctness. The Issuer Trustees shall not be accountable for
the use or application by the Depositor of the proceeds of the
Debentures.
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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 Trust Administration department shall
have received written notice from the Depositor, any Holder or any other
Issuer Trustee that such funds are not legally available.
SECTION 8.5. May Hold Securities.
Any Issuer Trustee or any other agent of any Issuer Trustee or the
Issuer Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, subject to Sections 8.8 and
8.13 and except as provided in the definition of the term "Outstanding"
in Article I, may otherwise deal with the Issuer Trust with the same
rights it would have if it were not an Issuer Trustee or such other
agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Issuer Trustees from time to time such
compensation as the parties shall agree from time to time for all
services rendered by them hereunder as may be agreed by the Depositor
and the Issuer Trustees from time to time (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 Issuer Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Issuer 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, bad faith or wilful misconduct;
and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Issuer Trustee, (ii) any Affiliate
of any Issuer Trustee, (iii) any officer, director, shareholder,
employee, representative or agent of any Issuer Trustee and (iv) any
employee or agent of the Issuer Trust (referred to herein as an
"Indemnified Person") from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by
such Indemnified Person by reason of the creation, operation or
termination of the Issuer Trust or any act or omission performed or
omitted by such Indemnified Person on behalf of the Issuer Trust, except
that no Indemnified Person shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by such Indemnified Person
by reason of negligence, bad faith or wilful misconduct with respect to
such acts or omissions.
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The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement and the removal or resignation of any Issuer
Trustee.
No Issuer Trustee may claim any Lien on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of
Issuer Trustees.
(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 is a national or state chartered bank and eligible pursuant to
Section 310 of the Trust Indenture Act to act as such and 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 and to the extent permitted by the
Trust Indenture Act, 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. At the time of appointment, the Property
Trustee must have securities rated in one of the three highest rating
categories by a nationally recognized statistical rating organization.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the
State of Delaware, or (ii) a legal entity with its principal place of
business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law and that shall act through one
or more persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
(a) 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.
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(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing,
at any time or times, for the purpose of meeting the legal requirements
of the Trust Indenture Act or of any jurisdiction in which any part of
the Trust Property may at the time be located, the Depositor and the
Administrative Trustees, by agreed action of the majority of such
Trustees, shall have power to appoint, and upon the written request of
the Administrative Trustees, the Depositor shall for such purpose join
with the Administrative Trustees in the execution, delivery and
performance of all instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or any part
of such Trust Property, or to the extent required by law to act as
separate trustee of any such property, in either case with such powers
as may be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title, right
or power deemed necessary or desirable, subject to the other provisions
of this Section. Any co-trustee or separate trustee appointed pursuant
to this Section shall either be (i) a natural person who is at least 21
years of age and a resident of the United States, or (ii) a legal entity
with its principal place of business in the United States that shall act
through one or more persons authorized to bind such entity. In case an
Event of Default under the Indenture shall have occurred and be
continuing, the Property Trustee alone shall have the power to make such
appointment.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be executed,
acknowledged and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed by one or more
Administrative Trustees and delivered by the Property Trustee 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 Property Trustee specified
hereunder shall be exercised solely by the Property Trustee and not by
such co-trustee or separate trustee.
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(b) The rights, powers, duties and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular
act is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers,
duties and obligations shall be exercised and performed by such co-
trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section and, in case a Debenture Event of Default
has occurred and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join with the
Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigning or removed may be appointed in the manner provided
in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any
other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act
of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Issuer Trustee pursuant to
this Article shall become effective until the acceptance of appointment
by the successor Issuer Trustee in accordance with the applicable
requirements of Section 8.11.
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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 Relevant Trustee may petition, at the expense of the Trust, any
court of competent jurisdiction for the appointment of a successor
Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Issuer Trustee may be removed at any time by Act of the
Holders of Common Securities. If a Debenture 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 Holders of 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 Issuer Trustee shall resign, be removed or become incapable
of acting as Issuer Trustee, or if a vacancy shall occur in the office
of any Issuer Trustee for any reason, at a time when no Debenture Event
of Default shall have occurred and be continuing, the Holders of Common
Securities, by Act of the Holders of Common Securities, shall promptly
appoint a successor Issuer Trustee or Issuer Trustees and the retiring
Issuer Trustee shall comply with the applicable requirements of Section
8.11. If the Property Trustee or the Delaware Trustee shall resign, be
removed or become incapable of continuing to act as the Property Trustee
or the Delaware Trustee, as the case may be, at a time when a Debenture
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 Trustees and such
successor Trustee 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, at a time when a
Debenture Event of Default shall have occurred and be continuing, the
Holders of Common Securities by Act of the Holders of Common Securities
shall promptly appoint a successor Administrative Trustee or
Administrative Trustees and such successor Administrative Trustee or
Trustees shall comply with the applicable requirements of Section 8.11.
If no successor Relevant Trustee shall have been so appointed by the
Holders of Common Securities or the Holders of Trust Preferred
Securities 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.
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The Property Trustee shall give notice of each resignation and each
removal of an Issuer Trustee and each appointment of a successor Issuer
Trustee to all Holders in the manner provided in Section 10.8 and shall
give notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office
if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any 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 (a) the unanimous act
of the remaining Administrative Trustees if there are at least two of
them or (b) otherwise by the Depositor (with the successor in each case
being a Person who satisfies the eligibility requirement for
Administrative Trustees or Delaware Trustee, as the case may be, set
forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant
Trustee with respect to the Trust Securities shall execute and deliver
an amendment hereto wherein each successor Relevant Trustee shall accept
such appointment and which (a) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of
the retiring Relevant Trustee with respect to the Trust Securities and
the Issuer Trust and (b) shall add to or change any of the provisions of
this Trust Agreement as shall be necessary to provide for or facilitate
the administration of the Issuer Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment
shall constitute such Relevant Trustees co-trustees and upon the
execution and delivery of such amendment the resignation or removal of
the retiring Relevant Trustee shall become effective to the extent
provided therein and each such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Issuer Trust or any successor Relevant Trustee such
retiring Relevant Trustee shall duly assign, transfer and deliver to
such successor Relevant Trustee all Trust Property, all proceeds thereof
and money held by such retiring Relevant Trustee hereunder with respect
to the Trust Securities and the Issuer Trust.
Upon request of any such successor Relevant Trustee, the Issuer
Trust shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Relevant Trustee all such
rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
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No successor Relevant Trustee shall accept its appointment unless
at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee, the Delaware Trustee or
any Administrative Trustee that is not a natural Person may be merged or
converted or with which it may be consolidated, or any Person resulting
from any merger, conversion or consolidation to which such 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 that
such Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against Depositor
or Issuer Trust.
If and when the Property Trustee shall be or shall become a
creditor, directly or indirectly, secured or unsecured, of the Depositor
or the Issuer Trust (or any other obligor upon the Trust Preferred
Securities), the Property Trustee shall be subject to the provisions of
Section 311 of the Trust Indenture Act regarding the collection of
claims against the Depositor or the Issuer Trust (or any such other
obligor).
SECTION 8.14. Property Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar
judicial proceeding relative to the Issuer Trust or any other obligor
upon the Trust Securities or the property of the Issuer Trust or of such
other obligor or their creditors, the Property Trustee (irrespective of
whether any Distributions on the Trust Securities shall then be due and
payable and irrespective of whether the Property Trustee shall have made
any demand on the Issuer Trust for the payment of any past due
Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and
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(b) 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 to make such payments to the Property Trustee
and, in the event the Property Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Property Trustee
any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and
counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
compensation affecting the Trust Securities or the rights of any Holder
thereof or to authorize the Property Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 8.15. Reports by Property Trustee.
(a) Not later than January 31 of each year, the Property Trustee
shall transmit to all Holders in accordance with Section 10.8 and to the
Depositor a brief report dated as of the immediately preceding December
31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under
said Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Trust Agreement during the 12-
month period (or, in the case of the initial report, the period
since the Closing Date) ending with such December 31 or, if the
Property Trustee has not complied in any material respect with such
obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its
possession as Property Trustee since the date of its last report
and any action taken by the Property Trustee in the performance of
its duties hereunder which it has not previously reported and which
in its opinion materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to Holders
such reports concerning the Property Trustee and its actions under this
Trust Agreement as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant thereto.
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(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each
national stock exchange, the Nasdaq National Market or such other
interdealer quotation system or self-regulatory organization upon which
the Trust Securities are listed or traded, with the Commission and with
the Depositor.
SECTION 8.16. Reports to the Property Trustee.
Each of the Depositor and the Administrative Trustees shall provide
to the Property Trustee, the Commission and the Holders such documents,
reports and information as required by Section 314 of the Trust
Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and
at the times required by Section 314 of the Trust Indenture Act. The
Depositor and the Administrative Trustees shall annually file with the
Property Trustee a certificate specifying whether such Person is in
compliance with all of the terms and covenants applicable to such Person
hereunder.
SECTION 8.17. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees shall provide
to the Property Trustee such evidence of compliance with the conditions
precedent, if any, provided for in this Trust Agreement that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given
in the form of an Officers' Certificate.
SECTION 8.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be five, provided that the
Property Trustee and the Delaware Trustee may be the same Person.
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee
shall not operate to annul, dissolve or terminate the Issuer Trust.
SECTION 8.19. 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 2.7(a), including any registration
statement or amendment thereto filed with the Commission, or making any
other governmental filing; and
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(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the doing of
such things and the execution of such instruments either in the name of
the Issuer 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 this Trust Agreement.
SECTION 8.20. Appointment of Administrative Trustees.
(a) The Administrative Trustees shall initially be K. B. Marsh, an
individual, M. R. Cannon, an individual, and H. T. Arthur, an
individual, and their successors shall be appointed by the Holders of a
Majority in Liquidation Amount of the Common Securities and may resign
or may be removed by the Holders of a Majority in Liquidation Amount of
the Common Securities at any time. Upon any resignation or removal, the
Depositor shall appoint a successor Administrative Trustee. Each
Administrative Trustee shall sign an agreement agreeing to comply with
the terms of this Trust Agreement. If at any time there is no
Administrative Trustee, the Property Trustee or any Holder who has been
a Holder of Trust Securities for at least six months may petition any
court of competent jurisdiction for the appointment of one or more
Administrative Trustees.
(b) 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 this Section 8.20, the
Administrative Trustees in office, regardless of their number (and not
withstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all
the duties imposed upon the Administrative Trustees by this Trust
Agreement.
(c) Notwithstanding the foregoing or any other provision of this
Trust Agreement, if any Administrative 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 the unanimous acts of the remaining
Administrative Trustees, if there were at least two of them prior to
such vacancy, and by the Depositor, if there were not two such
Administrative Trustees immediately prior to such vacancy (with the
successor being a Person who satisfies the eligibility requirement for
Administrative Trustees set forth in Section 8.7).
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ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically
dissolve on October 1, 2052 (the "Expiration Date").
SECTION 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early
Dissolution Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from all of the
Holders of the Common Securities at any time to dissolve the Issuer
Trust and to distribute the Debentures to Holders in exchange for the
Trust Preferred Securities (which direction is optional and wholly
within the discretion of the Holders of the Common Securities);
(c) the redemption of all of the Trust Preferred Securities in
connection with the redemption of all the Debentures;
(d) the entry of an order for dissolution of the Issuer Trust by
a court of competent jurisdiction; and
(e) the expiration of the term as provided in Section 9.1.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Issuer
Trustees and the Issuer Trust created and continued hereby shall
terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Holders of all amounts required
to be distributed hereunder upon the liquidation of the Issuer Trust
pursuant to Section 9.4, or upon the redemption of all of the Trust
Securities pursuant to Section 4.2; (b) the payment of any expenses owed
by the Issuer Trust; and (c) the discharge of all administrative duties
of the Administrative Trustees, including the performance of any tax
reporting obligations with respect to the Issuer Trust or the Holders.
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SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or
(d) of Section 9.2 occurs or upon the Expiration Date, the Issuer Trust
shall be liquidated by the Issuer Trustees as expeditiously as the
Issuer Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Issuer Trust as provided
by applicable law, to each Holder a Like Amount of Debentures, subject
to Section 9.4(d). Notice of liquidation 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 Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities
Register. All such 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 Debentures; and
(iii) provide such information with respect to the
procedures by which Holders may exchange Trust Securities
Certificates for Debentures, or if Section 9.4(d) applies receive
a Liquidation Distribution, as Administrative Trustees or the
Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Issuer Trust and distribution of the
Debentures to Holders, the Property Trustee, either itself acting as
exchange agent or through the appointment of a separate exchange agent,
shall establish a record date for such distribution (which shall be not
more than 30 days prior to the Liquidation Date) and, establish such
procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to
be Outstanding, (ii) certificates representing a Like Amount of
Debentures will be issued to Holders of Trust Securities Certificates,
upon surrender of such Certificates to the exchange agent for exchange,
(iii) the Depositor shall use its best efforts to have the Debentures
listed on the national stock exchange, the Nasdaq National Market or on
such other exchange, interdealer quotation system or self-regulatory
organization as the Trust Preferred Securities are then listed, (iv) any
Trust Securities Certificates not so surrendered for exchange will be
deemed to represent a Like Amount of Debentures bearing accrued and
unpaid interest in an amount equal to the accumulated and unpaid
Distributions on such Trust Securities Certificates until such
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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
Debentures) and (v) all rights of Holders holding Trust Securities will
cease, except the right of such Holders to receive Debentures upon
surrender of Trust Securities Certificates.
(d) If, notwithstanding the other provisions of this Section 9.4,
whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in
the manner provided herein is determined by the Property Trustee not to
be practical, or if an Early Termination Event specified in Section
9.2(c) occurs, the Trust Property shall be liquidated and the Issuer
Trust shall be wound-up or terminated by the Property Trustee in such
manner as the Property Trustee determines. In such event, Holders will
be entitled to receive out of the assets of the Issuer Trust available
for distribution to Holders, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus accumulated and
unpaid Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"). If, upon any such winding up or
termination, the Liquidation Distribution can be paid only in part
because the Issuer 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 Issuer Trust on the
Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holders of the Common Securities will be
entitled to receive Liquidation Distributions upon any such winding-up
or termination pro rata (determined as aforesaid) with Holders of Trust
Preferred Securities, except that, if a Debenture Event of Default
specified in Section 5.1(a) or 5.1(b) of the Indenture has occurred and
is continuing, the Trust Preferred Securities shall have a priority over
the Common Securities as provided in Section 4.3.
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of Issuer Trust.
The Issuer Trust may not merge with or into, consolidate,
amalgamate or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any corporation or
other body, except pursuant to this Sections 9.4 or 9.5. At the request
of the Holders of the Common Securities, with the consent of the
Administrative Trustees, the Issuer Trust may merge with or into,
consolidate, amalgamate or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to a trust
organized as such under the laws of any state; provided, that (i) such
successor entity either (a) expressly assumes all of the obligations of
the Issuer Trust with respect to the Trust Preferred Securities or (b)
substitutes for the Trust Preferred Securities other securities having
substantially the same terms as the Trust Preferred Securities (the
"Successor Securities") so long as the Successor Securities have the
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same priority as the Trust Preferred Securities with respect to
distributions and payments upon liquidation, redemption and otherwise,
(ii) a trustee of such successor entity possessing the same powers and
duties as the Property Trustee is appointed to hold the Debentures,
(iii) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Trust Preferred Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization which assigns ratings to the
Trust Preferred Securities, (iv) the Successor Securities are listed, or
any Successor Securities will be listed upon notice of issuance, on the
national securities exchange, the Nasdaq National Market or on such
other exchange, interdealer quotation system or self-regulatory
organization as the Trust Preferred Securities are then listed, if any,
(v) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the Trust Preferred Securities (including
any Successor Securities) in any material respect, (vi) such successor
entity has a purpose substantially identical to that of the Issuer
Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received
an Opinion of Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders
of the Trust Preferred Securities (including any Successor Securities)
in any material respect and (b) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither the
Issuer Trust nor such successor entity will be required to register as
an "investment company" under the Investment Company Act and (viii) the
Depositor or its permitted transferee owns all of the common securities
of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent
provided by the Guarantee Agreement. Notwithstanding the foregoing, the
Issuer Trust shall not, except with the consent of Holders of all of the
Trust Preferred Securities, consolidate, amalgamate, merge with or into,
or be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other entity or permit any other
entity to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Issuer Trust or the successor entity
to be taxable as a corporation or classified as other than a grantor
trust for United States federal income tax purposes.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death, incapacity,
bankruptcy, dissolution or termination of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to
terminate this Trust Agreement, or dissolve, terminate or annul the
Issuer Trust, nor entitle the legal representatives or heirs of such
Person or any Holder for such Person, to claim an accounting, take any
action or bring any proceeding in any court for a partition or winding
up of the arrangements contemplated hereby, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of
them.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee, the Administrative Trustees and the Holders of all of
the Common Securities, without the consent of any Holder of the Trust
Preferred Securities, (i) to cure any ambiguity, correct or supplement
any provision herein that may be inconsistent with any other provision
herein or to make any other provisions with respect to matters or
questions arising under this Trust Agreement which shall not be
inconsistent with the other provisions of this Trust Agreement or (ii)
to modify, eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Issuer Trust will
not be taxable as a corporation or classified as other than a grantor
trust for United States federal income tax purposes at all times that
any Trust Securities are outstanding or to ensure that the Issuer Trust
will not be required to register as an "investment company" under the
Investment Company Act, provided, however, that in the case of either
clause (i) or clause (ii) such action shall not adversely affect in any
material respect the interests of any Holder, and any such amendment of
this Trust Agreement shall become effective when notice thereof is given
to the Holders.
(b) Except as provided in Section 10.2(c), any provision of this
Trust Agreement may be amended by the Issuer Trustees and the Holders of
all of the Common Securities and with (i) the consent of Holders of at
least a Majority in Liquidation Amount of the Trust Securities and (ii)
receipt by the Issuer Trustees of an Opinion of Counsel to the effect
that such amendment or the exercise of any power granted to the Issuer
Trustees in accordance with such amendment will not cause the Issuer
Trust to be taxable as a corporation or as other than a grantor trust
for United States federal income tax purposes or affect the Issuer
Trust's exemption from status as an "investment company" under the
Investment Company Act.
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(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder (such
consent being obtained in accordance with Section 6.3 or 6.6), this
Trust Agreement may not be amended to (i) change the amount or timing of
any Distribution on the Trust Securities or otherwise adversely affect
the amount of any Distribution required to be made in respect of the
Trust Securities as of a specified date or (ii) restrict the right of a
Holder to institute suit for the enforcement of any such payment on or
after such date; and notwithstanding any other provision herein, without
the unanimous consent of the Holders (such consent being obtained in
accordance with Section 6.3 or 6.6), this Section 10.2(e) may not be
amended.
(d) Notwithstanding any other provisions of this Trust Agreement,
no Issuer Trustee shall enter into or consent to any amendment to this
Trust Agreement that would cause the Issuer Trust to fail or cease to
qualify for the exemption from status as an "investment company" under
the Investment Company Act or to be taxable as a corporation or to be
classified as other than a grantor trust for United States federal
income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor and the Administrative
Trustees, this Trust Agreement may not be amended in a manner that
imposes any additional obligation on the Depositor or the Administrative
Trustees.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees or the Property Trustee shall promptly
provide to the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement that
affects its own rights, duties or immunities under this Trust Agreement.
The Property Trustee shall be entitled to receive an Opinion of Counsel
and an Officers' Certificate stating that any amendment to this Trust
Agreement is in compliance with this Trust Agreement.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
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 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, AND THE ISSUER TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.
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SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a
day that is not a Business Day, then such payment need not be made on
such date but may be made on the next succeeding day that is a Business
Day (except as otherwise provided in Sections 4.1(a) and 4.2(d)), with
the same force and effect as though made on the date fixed for such
payment, and no Distributions shall accumulate on such unpaid amount for
the period after such date.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Issuer Trust and any
Issuer Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor
that is permitted under Article Eight of the Indenture and pursuant to
which the assignee agrees in writing to perform the Depositor's
obligations hereunder, the Depositor shall not assign its obligations
hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall
not affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any
provision of this Trust Agreement is required or permitted to be given
or served to or upon any Holder 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 Holder of Trust Preferred
Securities to such Holder as such Holder's name and address may appear
on the Securities Register and (ii) in the case of the Holder of the
Common Securities, the Depositor, to South Carolina Electric & Gas
Company, 1426 Main Street, Columbia, South Carolina, 29201, Attention:
Treasurer, facsimile no.: (803) 933-7037, or to such other address as
may be specified in a written notice by the Holder of the Common
Securities or the Depositor, as the case may be to the Property Trustee.
Such notice, demand or other communication to or upon a Holder shall be
deemed to have been sufficiently given or made, for all purposes, upon
hand delivery, mailing or transmission. Such notice, demand or other
communication to or upon the Depositor shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by
the Depositor.
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Any notice, demand or other communication that by any provision of
this Trust Agreement is required or permitted to be given or served to
or upon the Property Trustee, the Delaware Trustee, the Administrative
Trustees or the Issuer Trust shall be given in writing addressed to such
Person as follows: (i) with respect to the Property Trustee to The Bank
of New York, 101 Barclay Street, Floor 21 West, New York, New York
10286, Attention: Corporate Trust Administration; (ii) with respect to
the Delaware Trustee, The Bank of New York (Delaware), White Clay
Center, Rte 273, Newark, Delaware 19711, Attention: Corporate Trust
Administration; (iii) with respect to the Administrative Trustees, to
them at the address above for notices to the Depositor, marked
"Attention: Administrative Trustees of SCE&G Trust I"; and (iv) with
respect to the Issuer Trust, to its principal office specified in
Section 2.1, with a copy to the Property Trustee. Such notice, demand
or other communication to or upon the Issuer Trust, the Property Trustee
or the Administrative Trustees shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Issuer
Trust, the Property Trustee or such Administrative Trustee.
SECTION 10.9. Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit
of the Holders that, until at least one year and one day after the
Issuer Trust has been terminated in accordance with Article IX, they
shall not file, or join in the filing of, a petition against the Issuer
Trust under any bankruptcy, insolvency, reorganization or other similar
law (including the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Issuer Trust under any Bankruptcy Law. If the
Depositor takes action in violation of this Section 10.9, the Property
Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor
against the Issuer Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take such
action and should be stopped and precluded therefrom and such other
defenses, if any, as counsel for the Issuer Trustees or the Issuer Trust
may assert.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture
Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Issuer Trustee that is
a trustee for the purposes of the Trust Indenture Act.
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(c) If any provision hereof limits, qualifies or conflicts with
the duties imposed by Sections 310 to and including 317 of the Trust
Indenture Act through operation of Section 318(c) thereof, such imposed
duties shall control. If any provision of this Trust Agreement modifies
or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to
this Trust Agreement as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of
the Issuer Trust.
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee
Agreement and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT AND THE
INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS
OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE THE
AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE
TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE
AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND SUCH
OTHERS.
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IN WITNESS WHEREOF, the parties hereto have executed this Amended
and Restated Trust Agreement.
SOUTH CAROLINA ELECTRIC & GAS COMPANY, as
Depositor
By:_________________________________________
Name: M. R. Cannon
Title: Treasurer
THE BANK OF NEW YORK,
as Property Trustee
By:________________________________________
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:_______________________________________
Name:
Title:
__________________________________________
Name: K. B. Marsh, as Administrative Trustee
__________________________________________
Name: M. R. Cannon, as Administrative Trustee
__________________________________________
Name: H. T. Arthur, as Administrative Trustee
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Exhibit A
CERTIFICATE OF TRUST
OF
SCE&G TRUST I
This Certificate of Trust of SCE&G Trust I (the "Trust"),
dated October 8, 1997, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the
Delaware Business Trust Act (12 Del. C. (S) 3801 et seq.)
1. Name. The name of the business trust being formed
hereby is SCE&G Trust I.
2. Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in the
State of Delaware is The Bank of New York (Delaware), whose
business address is White Clay Center, Route 273, Newark, Delaware
19711.
IN WITNESS WHEREOF, the undersigned, being the trustees
of the Trust, have executed this Certificate of Trust as of the
date first above written.
THE BANK OF NEW YORK (Delaware), as
Delaware Trustee
By:_________________________________________
Name:
Title:
M. R. Cannon, as Administrative Trustee
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Exhibit C
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR
OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW
AND SECTION 5.11 OF THE TRUST AGREEMENT REFERRED TO THEREIN
Certificate Number Number of Common
Securities
CI-____ ___________
Certificate Evidencing Common Securities
of
SCE&G Trust I
7.55% Common Securities
(liquidation amount $25 per Common Security)
SCE&G Trust I, a statutory business trust created under the
laws of the State of Delaware (the "Issuer Trust"), hereby
certifies that ___________________________ (the "Holder") is the
registered owner of ____________ common securities of the Issuer
Trust representing common undivided beneficial interests in the
assets of the Issuer Trust and designated the 7.55% Common
Securities (liquidation amount $25 per Common Security) (the
"Common Securities"). Except in accordance with Section 5.11 of the
Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof other than in
accordance therewith shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued
and shall in all respects be subject to the terms and provisions
of, the Amended and Restated Trust Agreement of the Issuer Trust,
dated as of October 28, 1997, as the same may be amended from time
to time (the "Trust Agreement"), among South Carolina Electric &
Gas Company, as Depositor, The Bank of New York, as Property
Trustee, The Bank of New York (Delaware), as Delaware Trustee, the
Administrative Trustees named therein and the holders, from time to
time, of undivided beneficial interests in the assets of the Issuer
Trust, including the designation of the terms of the Common
Securities as set forth therein. The Issuer Trust will furnish a
copy of the Trust Agreement to the Holder without charge upon
written request to the Issuer Trust at its principal place of
business or registered office.
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Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth
in the Trust Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Issuer Trust has executed this certificate this ______ day of
___________, 199___.
SCE&G TRUST I
By:_______________________________
Name: M. R. Cannon
Administrative Trustee
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Exhibit D
[FORM OF TRUST PREFERRED SECURITIES CERTIFICATE]
THIS TRUST PREFERRED SECURITIES CERTIFICATE IS A BOOK-ENTRY
TRUST PREFERRED SECURITIES CERTIFICATE WITHIN THE MEANING OF THE
TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS TRUST
PREFERRED SECURITIES CERTIFICATE IS EXCHANGEABLE FOR TRUST
PREFERRED SECURITIES CERTIFICATES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT.
UNLESS THIS TRUST PREFERRED SECURITY CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO SCE&G TRUST I OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY TRUST
PREFERRED SECURITY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CERTIFICATE NUMBER NUMBER OF TRUST PREFERRED
SECURITIES
CAI-_____ ________________
CUSIP NO. _______________
CERTIFICATE EVIDENCING TRUST PREFERRED SECURITIES
OF
SCE&G TRUST I
7.55% TRUST PREFERRED SECURITIES, SERIES A
(LIQUIDATION AMOUNT $25 PER TRUST PREFERRED SECURITY)
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SCE&G Trust I, a statutory business trust created under the
laws of the State of Delaware (the "Issuer Trust"), hereby
certifies that _________________ (the "Holder") is the registered
owner of ____________________ (________________) Trust Preferred
Securities of the Issuer Trust representing a preferred undivided
beneficial interest in the assets of the Issuer Trust and
designated the SC&EG Trust I 7.55% Trust Preferred Securities,
Series A (liquidation amount $25 per Trust Preferred Security) (the
"Trust Preferred Securities"). The Trust Preferred Securities are
transferable on the books and records of the Issuer 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 5.5 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 Issuer Trust, dated as of October 28, 1997,
as the same may be amended from time to time (the "Trust
Agreement"), among South Carolina Electric & Gas Company, as
Depositor, The Bank of New York, as Property Trustee, The Bank of
New York (Delaware), as Delaware Trustee, the Administrative
Trustees named therein and the holders, from time to time, of
undivided beneficial interests in the assets of the Issuer Trust,
including the designation of the terms of the Trust Preferred
Securities as set forth therein. The Holder is entitled to the
benefits of the Guarantee Agreement entered into by South Carolina
Electric & Gas Company and The Bank of New York, as guarantee
trustee, dated as of October 28, 1997 (the "Guarantee Agreement"),
to the extent provided therein. The Issuer Trust will furnish a
copy of the Issuer Trust Agreement and the Guarantee Agreement to
the Holder without charge upon written request to the Issuer 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.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Issuer Trust has executed this certificate this _______ day of
____________, 199___.
SCE&G TRUST I
By:_______________________________________
Name: M. R. Cannon
Administrative Trustee
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Trust Preferred Security to:
- -----------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- -----------------------------------------------------------------
- -----------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints-----------------------------------------
- -----------------------------------------------------------------
agent to transfer this Trust Preferred Securities Certificate on
the books of the Issuer Trust. The agent may substitute another to
act for him or her.
Date:
----------------
Signature:
-----------------------------------------------------------
(Sign exactly as your name appears on the other side of this
Trust Preferred Securities Certificate). The signature(s) should
be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program),
pursuant to S.E.C. Rule 17Ad-15.
Signature Guaranty: _____________________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of The Bank of New York,
which requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by The Bank of
New York in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
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