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Registration No. 333-______
333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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
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.
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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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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Each Amount Maximum Maximum Amount of
Class of to be Offering Aggregate Registration
Securities to Registered Price Per Offering Fee
be Registered Unit (1) Price (1)
Junior
Subordinated
Deferrable
Interest
Debentures of
South Carolina
Electric & Gas
Company(2) $50,000,000 $ 25 $50,000,000 $15,152
Trust Preferred
Securities of
SCE&G Trust I $50,000,000 $25 $50,000,000 N/A
South Carolina
Electric & Gas
Company
Guarantee
Agreement with
respect to Trust
Preferred
Securities(3)(4) N/A N/A N/A N/A
Total $50,000,000(5) 100.0% $50,000,000(5) $15,152
(1) Estimated solely for the purpose of computing the registration fee.
(2) The Junior Subordinated Deferrable Interest Debentures will be purchased
by SCE&G Trust I with the proceeds of the sale of the Trust Preferred
Securities.
(3) No separate consideration will be received for the South Carolina Electric
& Gas Company Guarantee.
(4) This Registration Statement is deemed to cover the Junior Subordinated
Deferrable Interest Debentures of South Carolina Electric & Gas Company,
the rights of holders of Junior Subordinated Deferrable Interest Debentures
of South Carolina Electric & Gas Company under the Indenture, the Trust
Preferred Securities, the rights of holders of Trust Preferred Securities
of SCE&G Trust I under the Trust Agreement, and the rights of holders of
the Trust Preferred Securities under the Guarantee.
(5) Such amount represents the principal amount of Junior Subordinated
Deferrable Interest Debentures issued at their principal amount and the
initial public offering price of the Trust Preferred Securities of SCE&G
Trust I.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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SUBJECT TO COMPLETION DATED , 1997
$50,000,000
SCE&G TRUST I
_____% Trust Preferred Securities, Series A
(Liquidation Amount $25 per Trust Preferred Security)
fully and unconditionally guaranteed, as described herein, by
SOUTH CAROLINA ELECTRIC & GAS COMPANY
------------------
The _____% Trust Preferred Securities, Series A (the "Trust
Preferred Securities"), offered hereby represent preferred undivided
beneficial interests in the assets of SCE&G Trust I, a statutory
business trust created under Delaware law (the "Issuer"). South
Carolina Electric & Gas Company, a South Carolina corporation (the
"Company"), will be the owner of all of the common undivided beneficial
interests in the assets of the Issuer ("Common Securities" and,
collectively with the Trust Preferred Securities, the "Trust
Securities"). The Issuer exists for the sole purpose of issuing the
Trust Securities and investing the proceeds thereof in $50,000,000
aggregate principal amount of _____% Junior Subordinated Deferrable
Interest Debentures, Series A (the "Junior Subordinated Debentures"), to
be issued by the Company. The Junior Subordinated Debentures will mature
on ____________ 1, 20___ (the "Stated Maturity"). The Trust Preferred
Securities will have a preference under certain circumstances with
respect to cash distributions and amounts payable on liquidation,
redemption or otherwise over the Common Securities. See "Description of
Trust Preferred Securities -- Subordination of Common Securities."
(Continued on inside facing page)
Application has been made to list the Trust Preferred Securities on The
New York Stock Exchange ("NYSE").
For a discussion of certain factors that should be considered in
connection with an investment in the Trust Preferred Securities, see
"Risk Factors" on page ____ herein.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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Underwriting
Price to Discounts and Proceeds to the
Public(1) Commission Issuer (1)(2)(3)
Per Trust Preferred Security $ 25.00 (2) $ 25.00
Total $50,000,000 (2) $50,000,000
_________________________
(1) Plus accrued Distributions, if any, from ________________, 1997.
(2) In view of the fact that the proceeds of the sale of the Trust
Preferred Securities will be invested in the Junior Subordinated
Debentures, the Company has agreed to pay to the Underwriters, as
compensation for their arranging the investment therein of such
proceeds, $_____ per Trust Preferred Security (or ______________
in the aggregate). See "Underwriting."
(3) Before deduction of expenses payable by the Company estimated at
$156,000.
The Trust Preferred Securities are offered by the several
Underwriters when, as and if issued by the Issuer, delivered to and
accepted by the Underwriters and subject to their right to reject
orders in whole or in part. It is expected that delivery of the
Trust Preferred Securities will be made through the facilities of
The Depository Trust Company ("DTC") on or about
________________________, 1997, against payment in immediately
available funds.
CREDIT SUISSE FIRST BOSTON PAINEWEBBER INCORPORATED
Prospectus dated _________________, 1997.
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CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE
PRICE OF THE SECURITIES OFFERED HEREBY, INCLUDING OVER-ALLOTMENT,
STABILIZING TRANSACTIONS, SYNDICATE SHORT COVERING
TRANSACTIONS AND PENALTY BIDS. FOR A DESCRIPTION OF THESE
ACTIVITIES, SEE "UNDERWRITING."
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy and information statements
and other information filed by the Company can be inspected and copied at the
public reference facilities maintained by the Commission at 450 Fifth Street
NW, Washington, D.C. 20549 and the Commission's regional offices at Seven
World Trade Center, Suite 1300, New York, New York 10048, and at 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2551. Copies of
such material can also be obtained by mail from the Public Reference Section
of the Commission at 450 Fifth Street NW, Washington, D.C. 20549, at
prescribed rates. The Company's 5% Cumulative Preferred Stock, par value
$50 per share, is listed for trading on the NYSE. Reports, proxy and
information statements, and other information containing the Company may be
also be inspected at the offices of the NYSE at 20 Broad Street, New York,
New York 10005. The Commission maintains a Web site that contains reports,
proxy and information statements and other information regarding registrants,
like the Company, that file electronically with the Commission. The address of
the Commission Web site is http.//www.sec.gov.
The Company and the Issuer have filed with the Commission a Registration
Statement on Form S-3 (together with all amendments and exhibits thereto, the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the securities offered hereby. This
Prospectus does not contain all the information set forth in the Registration
Statement, certain portions of which have been omitted as permitted by the
rules and regulations of the Commission. For further information with respect
to the Company and the securities offered hereby, reference is made to the
Registration Statement and the exhibits and the financial statements, notes and
schedules filed as a part thereof or incorporated by reference therein, which
may be inspected at the public reference facilities of the Commission at the
addresses set forth above or through the Commission Web site. Statements
made in this Prospectus concerning the contents of any documents referred to
herein are not necessarily complete, and in each instance are qualified in all
respects by reference to the copy of such document filed as an exhibit to the
Registration Statement.
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No separate financial statements of the Issuer have been included herein.
The Company and the Issuer do not consider that such financial statements
would be material to holders of the Trust Preferred Securities because the
Issuer is a newly formed special purpose entity, has no operating history or
independent operations and is not engaged in and does not propose to engage
in any activity other than holding as trust assets Junior Subordinated
Debentures of the Company. Furthermore, taken together, the Company's
obligations under the Junior Subordinated Debentures, the Indenture, the Trust
Agreement and the Guarantee (as such terms are defined herein) provide, in the
aggregate, a full, irrevocable and unconditional guarantee of payments of
Distributions and other amounts due on the Trust Preferred Securities. See "The
Issuer," "Description of Trust Preferred Securities," "Description of Junior
Subordinated Debentures," "Description of Guarantee" and "Relationship
Among the Trust Preferred Securities, the Junior Subordinated Debentures and
the Guarantee." In addition, the Company does not expect that the Issuer will
be filing reports under the Exchange Act with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Commission by the Company
pursuant to the Exchange Act (File No. 1-3375), are incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the year
ended December 31, 1996; and
2. The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1997 and June 30, 1997.
All documents filed by the Company pursuant to Section 13, 14 or 15(d) of
the Exchange Act after the date of this Prospectus and prior to the termination
of the offering of the securities made by this Prospectus shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document that
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
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The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, on the written or oral request of any such person, a copy of any and
all of the documents referred to above that have been incorporated by reference
in this reference to such documents. Written or telephone requests for such
copies should be directed to H. John Winn, III, Manager - Investor Relations and
Shareholders Services, SCANA Corporation, Columbia, South Carolina 29218,
telephone number (803) 748-3240.
Pursuant to the Guarantee, the Company has guaranteed the
payment of Distributions (as defined below) and payments on
liquidation or redemption of the Trust Preferred Securities, but
only in each case to the extent of funds held by the Issuer, as
described herein. The obligations of the Company under the
Guarantee and the Junior Subordinated Debentures are unsecured and
rank subordinate and junior in right of payment to all Senior Debt
(as defined herein) of the Company. The Company has, through the
Guarantee, the Junior Subordinated Debentures, the Trust Agreement
and the Indenture, taken together, fully, irrevocably and
unconditionally guaranteed all of the Issuer's obligations under
the Trust Preferred Securities. See "Description of Junior
Subordinated Debentures," "Description of Trust Preferred
Securities," "Description of Guarantee" and "Relationship Among the
Trust Preferred Securities, the Junior Subordinated Debentures and
the Guarantee."
Holders of the Trust Preferred Securities will be entitled to
receive preferred cumulative cash distributions ("Distributions")
accumulating from the date of original issue and payable, unless
deferred, quarterly in arrears on March 31, June 30, September 30,
and December 31 of each year, commencing December 31, 1997, at the
annual rate of _______% of the Liquidation Amount (as defined
herein) of $25 per Trust Preferred Security. Subject to certain
exceptions, as described herein, the Company has the right to defer
payment of interest on the Junior Subordinated Debentures at any
time or from time to time for a period not exceeding 20 consecutive
quarterly periods with respect to each deferral period (each, an
"Extension Period"), provided that no Extension Period may extend
beyond the Stated Maturity of the Junior Subordinated Debentures.
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Upon the termination of any such Extension Period and the payment
of all interest then accrued and unpaid (together with interest
thereon at the rate of _______% per annum, compounded quarterly, to
the extent permitted by applicable law), the Company may elect to
begin a new Extension Period subject to the requirements set forth
herein. If interest payments on the Junior Subordinated Debentures
are so deferred, Distributions on the Trust Preferred Securities
will also be deferred and the Company will not be permitted,
subject to certain exceptions, to declare or pay any cash
distributions with respect to the Company's capital stock or debt
securities that rank on a parity with or junior to the Junior
Subordinated Debentures. During an Extension Period, interest on
the Junior Subordinated Debentures will (to the extent permitted by
law) continue to accrue (and the amount of Distributions to which
holders of the Trust Preferred Securities are entitled will
accumulate) at the rate of ________% per annum, compounded
quarterly from the relevant payment date for such interest, and
holders of Trust Preferred Securities will be required to accrue
interest income for United States federal income tax purposes prior
to the receipt of cash related to such interest income. See
"Description of Junior Subordinated Debentures -- Option to Defer
Interest Payments" and " -- Restrictions on Certain Payments" and
"Certain Federal Income Tax Consequences -- Interest Income and
Original Issue Discount."
The Trust Preferred Securities are subject to mandatory
redemption, in whole or in part, upon repayment of the Junior
Subordinated Debentures at their Stated Maturity or their earlier
redemption. The Junior Subordinated Debentures are redeemable prior
to their Stated Maturity at the option of the Company (i) on or
after ___________ 1, 2002, in whole at any time or in part from
time to time, or (ii) prior to ___________ 1, 2002, in whole (but
not in part), at any time within 90 days following the occurrence
of a Tax Event (as defined herein), in either case at a redemption
price of 100% of the principal amount thereof, plus accrued
interest to the redemption date. See "Description of Trust
Preferred Securities -- Redemption" and "Description of Junior
Subordinated Debentures -- Redemption."
The Company will have the right at any time to dissolve the
Issuer and, after satisfaction of liabilities to creditors of the
Issuer as required by applicable law, cause the Junior Subordinated
Debentures to be distributed to the holders of the Trust Preferred
Securities in exchange therefor upon liquidation of the Issuer. See
"Description of Trust Preferred Securities -- Dissolution and
Liquidation; Distribution Upon Dissolution."
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In the event of the dissolution of the Issuer, after
satisfaction of liabilities to creditors of the Issuer as required
by applicable law, the holders of the Trust Preferred Securities
will be entitled to receive the Liquidation Amount of $25 per Trust
Preferred Security plus accumulated and unpaid Distributions
thereon to the date of payment, which may be in the form of a
distribution of such amount in Junior Subordinated Debentures in
exchange therefor, subject to certain exceptions. See "Description
of Trust Preferred Securities -- Dissolution and Liquidation;
Distribution Upon Dissolution."
If the Junior Subordinated Debentures are distributed to the
holders of Trust Preferred Securities upon the liquidation of the
Issuer, the Company will use its best efforts to list the Junior
Subordinated Debentures on the NYSE or on such other stock
exchange, if any, on which the Trust Preferred Securities are then
listed or traded.
The Trust Preferred Securities will be represented by global
certificates registered in the name of DTC or its nominee.
Beneficial interests in the Trust Preferred Securities will be
shown on, and transfers thereof will be effected only through,
records maintained by participants in DTC. Except as described
herein, Trust Preferred Securities in certificated form will not be
issued in exchange for the global certificates. See "Description of
Trust Preferred Securities -- Book-Entry Issuance."
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more
detailed information appearing elsewhere in this Prospectus.
South Carolina Electric & Gas Company
The Company, a wholly-owned subsidiary of SCANA Corporation
("SCANA"), is a regulated utility engaged in the generation,
transmission, distribution and sale of electricity and in the
purchase and sale, primarily at retail, of natural gas in South
Carolina. The Company also renders urban bus service in the
metropolitan area of Columbia, South Carolina. The Company's
electric service covers over 15,000 square miles and extends into
24 counties in central, southern and southwestern portions of South
Carolina. The service area for natural gas encompasses all or part
of 30 counties of the 46 counties in South Carolina. The total
population of the Company's combined electric and gas service area
is approximately 2.4 million. The Company is a South Carolina
corporation organized in 1924.
SCE&G Trust I
The Issuer is a statutory business trust created under
Delaware law pursuant to the filing of a certificate of trust with
the Delaware Secretary of State on October 8, 1997, and will be
governed by the Trust Agreement among the Company, as Depositor,
The Bank of New York, as Property Trustee and The Bank of New York
(Delaware), as Delaware Trustee, the Administrative Trustees named
therein and the holders of the Trust Securities from time to time.
The Issuer's business and affairs are conducted by its trustees.
The Issuer exists for the exclusive purpose of (i) issuing and
selling the Trust Securities, (ii) using the proceeds from the sale
of the Trust Securities to acquire the Junior Subordinated
Debentures and (iii) engaging in only those other activities
necessary or incidental thereto (such as registering the transfer
of the Trust Securities). Accordingly, the Junior Subordinated
Debentures will be the sole assets of the Issuer, and payments
under the Junior Subordinated Debentures will be the sole source of
revenue of the Issuer.
The Offering
Securities Offered $50,000,000 aggregate Liquidation Amount of
___% Trust Preferred Securities, Series A
(Liquidation Amount $25 per Trust Preferred
Security).
Offering Price $25 per Trust Preferred Security (Liquidation
Amount $25), plus accumulated Distributions, if
any, from the date of original issuance.
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Distribution Dates March 31, June 30, September 30 and December
31 of each year, commencing December 31, 1997,
payable to the holder of record as of (so long
as the Trust Preferred Securities are held in
book-entry form by DTC) the last Business Day
before such dates.
Extension Periods Distributions on Trust Preferred Securities
may be deferred for the duration of any
Extension Period selected by the Company with
respect to the payment of interest on the
Junior Subordinated Debentures. No Extension
Period will exceed 20 consecutive quarters or
extend beyond the Stated Maturity of the
Junior Subordinated Debentures. See
"Description of Trust Preferred Securities --
Distributions," "Description of Junior
Subordinated Debentures -- Option to Defer
Interest Payments" and " -- Restrictions on
Certain Payments" and "Certain Federal Income
Tax Consequences --Interest Income and
Original Issue Discount."
Ranking Payments on the Trust Preferred Securities
will be made pro rata with the Common
Securities except as described under
"Description of Trust Preferred Securities--
Subordination of Common Securities." The
Junior Subordinated Debentures will be
unsecured and subordinate and junior in
right of payment to the extent and in the
manner set forth in the Indenture to all
Senior Debt. See "Description of Junior
Subordinated Debentures." The Guarantee will
constitute an unsecured obligation of the
Company and will rank subordinate and junior
in right of payment to the extent and in the
manner set forth in the Indenture to all
Senior Debt. See "Description of Guarantee."
Redemption The Trust Preferred Securities are subject to
mandatory redemption in whole but not in part
at the Stated Maturity upon repayment of the
Junior Subordinated Debentures at a redemption
price equal to 100% of the Liquidation Amount
of such Trust Preferred Securities plus
accumulated and unpaid Distributions thereon
to the date fixed for redemption. The Junior
Subordinated Debentures are subject to
redemption at the option of the Company (i) at
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any time on or after ___________ 1, 2002 and
(ii) within 90 days of the occurrence of a Tax
Event, in each case at a redemption price
equal to the principal amount plus accrued and
unpaid interest to the redemption date. See
"Description of Preferred Securities--
Redemption" and "Description of Junior
Subordinated Debentures - Redemption."
A "Tax Event" means the receipt by the Issuer
of an opinion of counsel experienced in such
matters to the effect that, as a result of any
amendment to, or change (including any
announced proposed change) in, the laws (or
any regulations thereunder) of the United
States or any political subdivision or taxing
authority thereof or therein, or as a result
of any official administrative pronouncement
or judicial decision interpreting or applying
such laws or regulations, which amendment or
change is effective or such pronouncement or
decision is announced on or after the date of
issuance of the Trust Preferred Securities
under the Trust Agreement, there is more than
an insubstantial risk that (i) the Issuer is,
or will be within 90 days of the date of such
opinion, subject to United States federal
income tax with respect to income received or
accrued on the Junior Subordinated Debentures,
(ii) interest payable by the Company on the
Junior Subordinated Debentures is not, or
within 90 days of such opinion, will not be,
deductible by the Company, in whole or in
part, for United States federal income tax
purposes or (iii) the Issuer is, or will be
within 90 days of the date of the opinion,
subject to more than a de minimis amount of
other taxes, duties or other governmental
charges.
Junior Subordinated The Company will have the right at any time to
Debentures dissolve the Issuer and, after satisfaction
of liabilities to creditors of the Issuer as
required by applicable law, cause the Junior
Subordinated Debentures to be distributed to
the holders of the Trust Preferred Securities
in exchange therefor upon liquidation of the
Issuer. See "Description of Trust Preferred
Securities -- Dissolution and Liquidation;
Distribution Upon Dissolution."
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Ratings The Trust Preferred Securities are expected to
be rated "___" by Moody's Investors Service,
Inc. ("Moody's") and "___" by, Standard &
Poor's, a Division of The McGraw-Hill
Companies, Inc. Ratings Services ("Standard &
Poor's"). A security rating is not a
recommendation to buy, sell or hold securities
and may be subject to revision or withdrawal
at any time by the assigning rating
organization.
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RISK FACTORS
Prospective purchasers of the Trust Preferred Securities should
carefully review the information contained elsewhere, or incorporated by
reference, in this Prospectus and should particularly consider the
following matters. In addition, because holders of Trust Preferred
Securities may receive Junior Subordinated Debentures in exchange
therefor upon liquidation of the Issuer, prospective purchasers of Trust
Preferred Securities are also making an investment decision with regard
to the Junior Subordinated Debentures and should carefully review all
the information regarding the Junior Subordinated Debentures contained
herein.
Ranking of Subordinated Obligations
The ability of the Issuer to pay amounts due on the Trust Preferred
Securities is solely dependent upon the Company making payments on the
Junior Subordinated Debentures as and when required. The obligations of
the Company under the Guarantee and under the Junior Subordinated
Debentures are unsecured and rank subordinate and junior in right of
payment to all Senior Debt of the Company. Substantially all of the
Company's existing indebtedness constitutes Senior Debt. None of the
Indenture, the Guarantee or the Trust Agreement places any limitation on
the amount of secured or unsecured debt, including Senior Debt, that may
be incurred by the Company or its subsidiaries. See "Description of
Junior Subordinated Debentures -- Subordination" and "Description of
Guarantee -- Status of the Guarantee."
Option to Defer Interest Payments; Tax Consequences; Market Price
Consequences
So long as no event of default under the Indenture (a "Debenture
Event of Default," as more particularly defined herein) has occurred and
is continuing, the Company has the right under the Indenture to defer
payment of interest on the Junior Subordinated Debentures at any time or
from time to time for a period not exceeding 20 consecutive quarterly
periods with respect to each Extension Period, provided that no
Extension Period may extend beyond the Stated Maturity of the Junior
Subordinated Debentures. As a consequence of any such deferral,
Distributions on the Trust Preferred Securities by the Issuer would also
be deferred (and the amount of Distributions to which holders of the
Trust Preferred Securities are entitled would accumulate additional
Distributions thereon at the rate of _______% per annum, compounded
quarterly from the relevant payment date for such Distributions) during
any such Extension Period and the Company will not be permitted, subject
to certain exceptions to declare or pay any distributions with respect
to the Company's capital stock or debt securities that rank on a parity
with or junior to the Junior Subordinated Debentures. Upon the
termination of any Extension Period and the payment of all interest then
accrued and unpaid (together with interest thereon at the annual rate of
_______%, compounded quarterly from the interest payment date for such
interest, to the extent permitted by applicable law), the Company may
elect to begin a new Extension Period subject to the above requirements
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and restrictions. There is no limitation on the number of
times that the Company may elect to begin an Extension Period. See
"Description of Trust Preferred Securities -- Distributions" and
"Description of Junior Subordinated Debentures -- Option to Defer
Interest Payments" and "-- Restrictions on Certain Payments."
Should an Extension Period occur, a holder of Trust Preferred
Securities will be required to accrue income (in the form of original
issue discount) in respect of its pro rata share of the Junior
Subordinated Debentures held by the Issuer for United States federal
income tax purposes. As a result, a holder of Trust Preferred Securities
will be required to include such income in gross income for United
States federal income tax purposes in advance of the receipt of cash
attributable to such income, and will not receive the cash related to
such income from the Issuer if the holder disposes of the Trust
Preferred Securities prior to the record date for the payment of
Distributions. See "Certain Federal Income Tax Consequences -- Interest
Income and Original Issue Discount" and "-- Sale or Redemption of Trust
Preferred Securities."
The Company has no current intention of exercising its right to
defer payments of interest on the Junior Subordinated Debentures.
However, should the Company elect to exercise such right in the future,
the market price of the Trust Preferred Securities is likely to be
affected. A holder that disposes of its Trust Preferred Securities
during an Extension Period, therefore, might not receive the same return
on its investment as a holder that continues to hold its Trust Preferred
Securities until the end of such Extension Period.
Tax Event
Upon the occurrence and continuation of a Tax Event prior to
____________ 1, 2002, the Company has the right to redeem the Junior
Subordinated Debentures in whole (but not in part) within 90 days
following the occurrence of such Tax Event and thereby cause a mandatory
redemption of the Trust Preferred Securities at a redemption price equal
to the Liquidation Amount plus accrued Distributions to but excluding
the date fixed for redemption. See "Certain Terms of Trust Preferred
Securities -- Redemption" and "Certain Terms of Junior Subordinated
Debentures -- Redemption."
Exchange of Trust Preferred Securities for Junior Subordinated
Debentures
The Company will have the right at any time to dissolve the Issuer
and, after satisfaction of liabilities to creditors of the Issuer as
required by applicable law, cause the Junior Subordinated Debentures to
be distributed to the holders of the Trust Preferred Securities in
exchange therefor upon liquidation of the Issuer. See "Description of
Trust Preferred Securities -- Liquidation of Issuer and Distribution of
Junior Subordinated Debentures to Holders." Under current United States
federal income tax law and interpretations, a distribution of the Junior
16
<PAGE>
Subordinated Debentures upon liquidation of the Issuer should not be a
taxable event to holders of the Trust Preferred Securities. However, if
a Tax Event were to occur which would cause the Issuer to be subject to
United States federal income tax with respect to income received or
accrued on the Junior Subordinated Debentures, a distribution of the
Junior Subordinated Debentures by the Issuer could be a taxable event to
the Issuer and the holders of the Trust Preferred Securities. See
"Certain Federal Income Tax Consequences -- Distribution of the Junior
Subordinated Debentures to Holders of Trust Preferred Securities."
Market Prices
There can be no assurance as to the market prices for Trust
Preferred Securities or Junior Subordinated Debentures that may be
distributed in exchange for Trust Preferred Securities upon liquidation
of the Issuer. Accordingly, the Trust Preferred Securities that an
investor may purchase, whether pursuant to the offer made hereby or in
the secondary market, or the Junior Subordinated Debentures that a
holder of Trust Preferred Securities may receive on liquidation of the
Issuer, may trade at a discount to the price that the investor paid to
purchase the Trust Preferred Securities offered hereby. As a result of
the existence of the Company's right to defer interest payments, the
market price of the Trust Preferred Securities (which represent
preferred undivided beneficial ownership interests in the Issuer) may be
more volatile than the market prices of other securities that are not
subject to such deferrals. See "Description of Trust Preferred
Securities -- Dissolution and Liquidation; Distribution Upon
Dissolution" and "Description of Junior Subordinated Debentures --
Distribution of Junior Subordinated Debentures."
Rights Under the Guarantee; Direct Action
Pursuant to the Guarantee, the Company guarantees to the holders of
the Trust Preferred Securities the following payments, to the extent not
paid by the Issuer: (i) any accumulated and unpaid Distributions
required to be paid on the Trust Preferred Securities, to the extent
that the Issuer has funds on hand available therefor at such time, (ii)
the redemption price with respect to any Trust Preferred Securities
called for redemption, to the extent that the Issuer has funds on hand
available therefor at such time and (iii) upon a voluntary or
involuntary dissolution, winding-up or liquidation of the Issuer (unless
the Junior Subordinated Debentures are distributed to holders of the
Trust Preferred Securities), the lesser of (a) the aggregate of the
Liquidation Amount and all accumulated and unpaid Distributions to the
date of payment (the "Liquidation Distribution"), to the extent that the
Issuer has funds on hand available therefor at such time and (b) the
amount of assets of the Issuer remaining available for distribution to
holders of the Trust Preferred Securities.
17
<PAGE>
The holders of more than 50% of the aggregate Liquidation Amount of
the Trust Preferred Securities have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Guarantee Trustee (as herein defined) in respect of the Guarantee or to
direct the exercise of any trust power conferred upon the Guarantee
Trustee under the Guarantee. Any holder of Trust Preferred Securities
may institute a legal proceeding directly against the Company to enforce
its rights under the Guarantee without first instituting a legal
proceeding against the Issuer, the Guarantee Trustee or any other person
or entity. If the Company were to default on its obligation to pay
amounts payable under the Junior Subordinated Debentures, the Issuer
would lack funds for the payment of Distributions or amounts payable on
redemption of the Trust Preferred Securities or otherwise, and, in such
event, holders of the Trust Preferred Securities would not be able to
rely upon the Guarantee for payment of such amounts. Instead, if a
Debenture Event of Default shall have occurred and be continuing and
such event is attributable to the failure of the Company to pay interest
or premium, if any, on or principal of the Junior Subordinated
Debentures on the date on which such payment is due and payable, then a
holder of Trust Preferred Securities may, pursuant to the Indenture,
institute a legal proceeding directly against the Company for
enforcement of payment to such holder of the principal of or interest or
premium, if any, on such Junior Subordinated Debentures having a
principal amount equal to the aggregate Liquidation Amount of the Trust
Preferred Securities of such holder (a "Direct Action"). In connection
with such Direct Action, the Company will have a right of setoff under
the Indenture to the extent of any payment made by the Company to such
holder of Trust Preferred Securities in the Direct Action. Except as
described herein, holders of Trust Preferred Securities will not be able
to exercise directly any other remedy available to the holders of the
Junior Subordinated Debentures or assert directly any other rights in
respect of the Junior Subordinated Debentures. See "Description of
Junior Subordinated Debentures -- Enforcement of Certain Rights by
Holders of Trust Preferred Securities" and "-- Debenture Events of
Default" and "Description of Guarantee."
Limited Voting Rights
Holders of Trust Preferred Securities generally will have limited
voting rights relating only to the modification of the Trust Preferred
Securities and the exercise of the Issuer's and the Guarantee Trustee's
rights as holders of the Junior Subordinated Debentures and under the
Guarantee, respectively. Either or both of the Delaware Trustee or the
Property Trustee, unless a Debenture Event of Default shall have
occurred and be continuing, and any of the Property Trustees, may be
removed and replaced at any time by the holders of the Common
Securities. If a Debenture Event of Default shall have occurred and be
continuing, either or both of the Property Trustee or the Delaware
Trustee may be removed by act of the holders of more than 50% of the
Trust Preferred Securities. In no event will holders of the Trust
Preferred Securities have the right to remove or replace the
Administrative Trustees. The Property Trustee, the Administrative
18
<PAGE>
Trustees and the Company may amend the Trust Agreement without the
consent of holders of Trust Preferred Securities to ensure that the
Issuer will be classified for United States federal income tax purposes
as a grantor trust or as other than as an association taxable as a
corporation unless such action materially and adversely affects the
interests of such holders. See "Description of Trust Preferred
Securities -- Resignation and Removal of Issuer Trustees; Appointment of
Successors."
THE COMPANY
The Company, a wholly-owned subsidiary of SCANA, is a regulated
utility engaged in the generation, transmission, distribution and sale
of electricity and in the purchase and sale, primarily at retail, of
natural gas in South Carolina. The Company also renders urban bus
service in the metropolitan area of Columbia, South Carolina. The
Company's electric service area covers over 15,000 square miles and
extends into 24 counties in central, southern and southwestern portions
of South Carolina. The service area for natural gas encompasses all or
part of 30 counties of the 46 counties in South Carolina. The total
population of the Company's combined electric and gas service area is
approximately 2.4 million. The Company is a South Carolina corporation
organized in 1924 and has its principal executive offices at 1426 Main
Street, Columbia, South Carolina 29201, telephone number (803) 748-3000.
THE ISSUER
The Issuer is a statutory business trust created under Delaware law
on October 8, 1997 pursuant to (i) a trust agreement executed by the
Company, as depositor (in such capacity, the "Depositor"), the Delaware
Trustee and the Administrative Trustees named therein and (ii) the
filing of a certificate of trust with the Delaware Secretary of State.
The trust agreement will be amended and restated in its entirety (as so
amended and restated, the "Trust Agreement") substantially in the form
filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. The Issuer exists for the exclusive purposes
of (i) issuing and selling the Trust Securities, (ii) using the proceeds
from the sale of the Trust Securities to acquire Junior Subordinated
Debentures and (iii) engaging in only those other activities necessary
or incidental thereto (such as registering the transfer of the Trust
Securities). Accordingly, the Junior Subordinated Debentures will be
the sole assets of the Issuer, and payments under the Junior
Subordinated Debentures will be the sole source of revenue of the
Issuer. The Issuer may not borrow money or issue debt or mortgage or
pledge any of its assets.
All of the Common Securities will be owned by the Company.
Payments of Distributions (including Additional Amounts (as defined
herein) on, the redemption price of and the Liquidation Distribution in
respect of the Trust Securities, as applicable, will be made pro rata
among the Common Securities and the Trust Preferred Securities except
that upon the occurrence and continuance of an event of default under
the Trust Agreement (an "Event of Default," as more particularly
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<PAGE>
defined herein) resulting from a Debenture Event of Default attributable
to the failure of the Company to pay interest or premium, if any, on or
principal of the Junior Subordinated Debentures on the date on which
such payment is due and payable, the rights of the Company, as holder of
the Common Securities, to payment in respect of Distributions and
payments upon liquidation or redemption will be subordinated to the
rights of the holders of the Trust Preferred Securities. See
"Description of the Trust Preferred Securities -- Subordination of
Common Securities." The Company will acquire Common Securities in an
aggregate Liquidation Amount equal to not less than 3% of the total
capital of the Issuer.
The Issuer has a term of approximately 55 years, but may dissolve
earlier as provided in the Trust Agreement. The Issuer's business and
affairs are conducted by its trustees, each appointed by the Company as
holder of the Common Securities. See "Description of the Trust
Preferred Securities -- Dissolution and Liquidation; Distribution Upon
Dissolution." The trustees for the Issuer will be The Bank of New York,
as Property Trustee (the "Property Trustee"), The Bank of New York
(Delaware), as Delaware Trustee (the "Delaware Trustee"), and individual
administrative trustees (the "Administrative Trustees") who are
employees or officers of or affiliated with the Company (collectively,
the "Issuer Trustees"). The Bank of New York, as Property Trustee, will
act as sole indenture trustee under the Trust Agreement for purposes of
compliance with the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). The Bank of New York will also act as trustee under the
Guarantee and the Indenture (in such capacity under the Guarantee, the
"Guarantee Trustee," and in such capacity under the Indenture, the
"Debenture Trustee"). The duties and obligations of the Issuer Trustees
are governed by the Trust Agreement. The Company will pay all fees and
expenses related to the Issuer and the offering of the Trust Preferred
Securities and will pay, directly or indirectly, all ongoing costs,
expenses and liabilities of the Issuer.
It is anticipated that the Issuer will not be subject to the
reporting requirements under the Exchange Act.
The principal executive office of the Issuer is c/o South Carolina
Electric & Gas Company, 1426 Main Street, Columbia, South Carolina 29202
and its telephone number is (803) 748-3000.
20
<PAGE>
SELECTED FINANCIAL DATA
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Six Months Ended June 30, Year Ended December 31,
1997 1996 1996 1995 1994
Consolidated Statements of
Income Data:
Operating Revenues.............$ 626,893 $ 664,829 $1,344,597 $1,211,087 $1,181,274
Operating Income............... 125,922 138,633 285,525 255,854 230,418
Income Before Interest Charges. 128,928 141,413 289,645 265,407 237,689
Interest Charges............... 48,845 50,132 99,163 96,222 85,646
AFC (includes allowance
for both equity and
borrowed funds).............. 5,518 5,239 9,408 20,962 14,893
Net Income..................... 80,083 91,281 190,482 169,185 152,043
Net Utility Plant................ 3,243,293 3,129,484 3,196,897 3,157,657 2,998,132
As of June 30, 1997
Actual Percentage Adjusted Percentage
(Thousands of Dollars, Except Percentages)
(Unaudited)
Capitalization:
Long-Term Debt $1,278,659 44.5 $1,278,659 44.5
Cumulative Preferred Stock
(not subject to purchase or sinking
funds) 126,027 4.4 106,260 3.7
Cumulative Preferred Stock
(subject to purchase or sinking funds) 41,033 1.4 11,397 .4
Company Obligated Preferred Securities
of Subsidiary Trust Holding Solely
Junior Subordinated Debentures -0- -0- 50,000 1.7
Common Stock Equity 1,430,275 49.7 1,430,273 49.7
Advances from Affiliated Companies -0-
Total $2,875,992 100.0 $2,876,589 100.0
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's historical ratio of earnings to fixed
charges of the Company for each of the periods presented:
Twelve Months
Ended
June 30, Years Ended December 31,
1997 1996 1995 1994 1993 1992
3.65 3.80 3.41 3.46 3.57 2.73
For purposes of this ratio, earnings represent net income plus taxes and fixed charges.
Fixed charges represent interest charges and the estimated interest portion of annual
rentals.
</TABLE>
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<PAGE>
USE OF PROCEEDS
All of the proceeds from the sale of Trust Preferred Securities and the
Common Securities will be invested by the Issuer in the Junior Subordinated
Debentures. The Company intends that the proceeds from the sale of the
Junior Subordinated Debentures will be used to reimburse the Company for
amounts deposited to redeem the Company's 7.70% Cumulative Preferred Stock
outstanding at October 10, 1997 in the aggregate par amount of $8,100,000,
8.12% Cumulative Preferred Stock outstanding at October 10, 1997 in the
aggregate par amount of $11,436,800, 8.40% Cumulative Preferred Stock
outstanding at October 10, 1997 in the aggregate par amount of $19,766,800,
8.72% Cumulative Preferred Stock outstanding at October 10, 1997 in the
aggregate par amount of $1,599,650 and 9.40% Cumulative Preferred Stock
outstanding at October 10, 1997 in the aggregate par amount of $8,500,000,
constituting all of the outstanding Preferred Stock of the respective series,
at the applicable redemption prices to the redemption date, or for general
corporate purposes.
ACCOUNTING TREATMENT
For financial reporting purposes, the Issuer will be treated as a
subsidiary of the Company and, accordingly, the accounts of the Issuer will
be included in the consolidated financial statements of the Company. The
Trust Preferred Securities will be presented as a separate line item in the
consolidated balance sheets of the Company entitled "Company Obligated
Preferred Securities of Subsidiary Trust Holding Solely Junior Subordinated
Debentures." For financial reporting purposes, the Company will record
Distributions payable on the Trust Preferred Securities as an expense in the
consolidated statements of income.
DESCRIPTION OF TRUST PREFERRED SECURITIES
Pursuant to the Trust Agreement, the Issuer will issue the Trust
Preferred Securities and the Common Securities. The Trust Preferred
Securities will represent preferred undivided beneficial interests in the
assets of the Issuer and the holders thereof will be entitled to a preference
in certain circumstances with respect to Distributions and amounts payable on
redemption or liquidation over the Common Securities of the Issuer, as well
as other benefits as described in the Trust Agreement. This summary of
certain provisions of the Trust Preferred Securities and the Trust Agreement,
which summarizes the material terms thereof, does not purport to be complete
and is subject to, and is qualified in its entirety by reference to, all the
provisions of the Trust Agreement, including the definitions therein of
certain terms, and the Trust Indenture Act, to which reference is hereby
made. Wherever particular defined terms of the Trust Agreement are referred
to herein, such defined terms are incorporated herein or therein by
reference. The form of the Trust Agreement has been filed as an exhibit to
the Registration Statement of which this Prospectus forms a part.
22
<PAGE>
Distributions
Distributions on the Trust Preferred Securities will be payable at the
annual rate of ________% of the stated liquidation amount (the "Liquidation
Amount") of $25, payable quarterly in arrears on March 31, June 30, September
30 and December 31 of each year (each a "Distribution Date"), commencing
December 31, 1997. Distributions on the Trust Preferred Securities with
respect to a Distribution Date will be payable to the holders of the Trust
Preferred Securities as they appear on the close of business on the fifteenth
day next preceding the relevant Distribution Date; provided that so long as
the Trust Preferred Securities are held in book-entry form by DTC
Distributions will be payable to the holders on the last Business Day
preceding such Distribution Date. Distributions will accumulate from the
date of original issuance. The amount of Distributions payable for any
period will 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 is a period.
In the event that any date on which Distributions are payable on the Trust
Preferred Securities is not a Business Day, then payment of the Distributions
payable on such date will be made on the next succeeding day that is a
Business Day (and without any additional Distributions or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if
made on the date such payment was originally payable. As used herein,
"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. Distributions in respect of
the Trust Preferred Securities will be made pro rata with the Common
Securities of the Issuer except as described under "-- Subordination of
Common Securities."
The sole source of revenue of the Issuer available for distribution to
holders of the Trust Preferred Securities will be limited to payments under
the Junior Subordinated Debentures. If the Company does not make interest
payments on the Junior Subordinated Debentures, the Property Trustee will not
have funds available to pay Distributions on the Trust Preferred Securities.
The payment of Distributions (if and to the extent the Issuer has funds
legally available for the payment of such Distributions and cash sufficient
to make such payments) is guaranteed by the Company on a limited basis as set
forth under "Description of Guarantee."
23
<PAGE>
So long as no Debenture Event of Default has occurred and is continuing,
the Company has the right under the Indenture to defer payment of interest on
the Junior Subordinated Debentures at any time or from time to time for an
Extension Period of not exceeding 20 consecutive quarterly periods, provided
that no Extension Period may extend beyond the Stated Maturity of the Junior
Subordinated Debentures. As a consequence of any such deferral of interest
payments by the Company, Distributions on the Trust Preferred Securities
would also be deferred by the Issuer during any such Extension Period, and
the Company will not be permitted, subject to certain exceptions, to declare
or pay any cash distributions with respect to the Company's capital stock or
debt securities that rank on a parity with or junior to the Junior
Subordinated Debentures. See "Description of Trust Preferred Securities --
Restrictions on Certain Payments." Distributions to which holders of the
Trust Preferred Securities are entitled would accumulate additional
Distributions thereon at the rate per annum of _______% thereof, compounded
quarterly from the relevant payment date for such Distributions to but
excluding the date of payment. The term "Distributions" as used herein shall
include any such additional Distributions. Upon the termination of any such
Extension Period and the payment of all interest then accrued and unpaid
(together with interest thereon at the rate of _______% per annum, compounded
quarterly, to the extent permitted by applicable law), the Company may elect
to begin a new Extension Period. There is no limitation on the number of
times that the Company may elect to begin an Extension Period. See
"Description of Junior Subordinated Debentures -- Option to Defer Interest
Payments" and "Certain Federal Income Tax Consequences -- Interest Income and
Original Issue Discount." Within five Business Days after the receipt of
notice of the Company's exercise of its right to defer the payment of
interest on the Junior Subordinated Debentures pursuant to the Indenture, the
Administrative Trustees shall transmit, in the manner and to the extent
provided in the Trust Agreement, notice of such exercise to the holders of
the Trust Preferred Securities, unless such exercise shall have been revoked.
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the Junior
Subordinated Debentures.
Redemption
While the Securities are outstanding, upon the repayment or redemption,
in whole or in part, of the Junior Subordinated Debentures, whether at Stated
Maturity or upon earlier redemption as provided in the Indenture, the
proceeds from such repayment or redemption shall be applied by the Property
Trustee to redeem a Like Amount (as defined below) of the Trust Securities,
at a redemption price, with respect to the Trust Preferred Securities equal
to the aggregate Liquidation Amount of such Trust Preferred Securities plus
accumulated and unpaid Distributions thereon to the date of redemption (the
"Redemption Date"). If less than all of the Junior Subordinated Debentures
are to be repaid or redeemed on a
24
<PAGE>
Redemption Date, then the proceeds from such repayment or redemption,
including any premium paid by the Company, shall be allocated to the
redemption pro rata of the Trust Preferred Securities and Common Securities
based upon the relative Liquidation Amounts of such Trust Securities except
as described under "-- Subordination of Common Securities." Redemptions of
the Trust Preferred Securities shall be made and the redemption price shall
be payable on each Redemption Date only to the extent that the Issuer has
funds on hand available for the payment of the redemption price.
The Company has the right to redeem the Junior Subordinated Debentures
(i) on or after __________ 1, 2002, in whole at any time or in part from time
to time or (ii) prior to __________ 1, 2002, in whole (but not in part),
within 90 days following the occurrence of a Tax Event. A redemption of the
Junior Subordinated Debentures would cause a mandatory redemption of the
Trust Securities. See "Description of Junior Subordinated Debentures --
Redemption."
In the event a Tax Event has occurred and is continuing and the Company
does not elect to redeem the Junior Subordinated Debentures and thereby cause
a mandatory redemption of Trust Preferred Securities or to dissolve the
Issuer and cause the Junior Subordinated Debentures to be distributed to
holders of the Trust Securities in exchange therefor upon liquidation of the
Issuer as described above, such Trust Securities will remain outstanding and
Additional Sums (as defined below) may be payable on the Junior Subordinated
Debentures.
"Additional Sums" means the additional amounts as may be necessary in
order that the amount of Distributions then due and payable by the Issuer on
the outstanding Trust Securities shall not be reduced as a result of any
additional taxes, duties and other governmental charges to which the Issuer
has become subject as a result of a Tax Event.
"Like Amount" means (i) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Junior Subordinated Debentures to be contemporaneously
redeemed, the proceeds of which will be used to pay the redemption price of
such Trust Securities, (ii) with respect to a distribution of Junior
Subordinated Debentures to holders of any series of Trust Securities in
connection with a dissolution or liquidation of the Issuer, Junior
Subordinated Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities in respect of which such distribution is made
and (iii) with respect to any distribution of Additional Amounts (as defined
herein), Junior Subordinated Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities in respect of which such
distribution is made.
25
<PAGE>
Notice of redemption of Trust Preferred Securities not held in book-
entry form shall be given not less than 30 nor more than 60 days notice prior
to the date Redemption Date. If the Property Trustee gives a notice of
redemption in respect of Trust Preferred Securities, then, by 12:00 noon, New
York City time, on the Redemption Date, to the extent funds are available,
the Property Trustee will, with respect to Trust Preferred Securities held in
book-entry form, deposit irrevocably with the Depositary funds sufficient to
pay the redemption price and will give the Depositary irrevocable
instructions and authority to pay the redemption price to the holders of such
Trust Preferred Securities. See "-- Book-Entry Issuance." If such Trust
Preferred Securities are no longer in book-entry form, the Property Trustee,
to the extent funds are available, will irrevocably deposit with the paying
agent for the Trust Preferred Securities funds sufficient to pay the
redemption price and will give such paying agent irrevocable instructions and
authority to pay the redemption price to the holders thereof upon surrender
of their certificates evidencing such Trust Preferred Securities.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Preferred Securities called for redemption
shall be payable to the holders of such Trust Preferred 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 the holders of such Trust Preferred
Securities so called for redemption will cease, except the right of the
holders of such Trust Preferred Securities to receive the redemption price,
but without interest on such redemption price, and such Trust Preferred
Securities will cease to be outstanding. In the event that any date fixed
for redemption of Trust Preferred Securities is not a Business Day, then
payment of the redemption price payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day
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 Trust Preferred Securities called for redemption is improperly
withheld or refused and not paid either by the Issuer or by the Company
pursuant to the Guarantee as described under "Description of Guarantee,"
Distributions on such Trust Preferred Securities will continue to accumulate
at the then applicable rate from the Redemption Date originally established
by the Issuer for such Trust Preferred 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.
If less than all of the Trust Preferred Securities and Common Securities
subject to redemption are to be redeemed on a Redemption Date, then with
respect to Trust Preferred Securities not held in book-entry form, the
particular Trust Preferred Securities to be redeemed shall be selected on a
pro rata basis 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. With respect to Trust Preferred
26
<PAGE>
Securities held in book-entry form, the Trust Preferred Securities to be
redeemed shall be selected as described under "-- Book Entry Issuance." 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 the Trust
Agreement, unless the context otherwise requires, the 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
which has been or is to be redeemed.
Book-Entry Issuance
DTC will initially act as securities depositary for all of the Trust
Preferred Securities. The Trust Preferred Securities will be issued only as
fully-registered securities registered in the name of Cede & Co. (DTC's
nominee). One or more fully-registered Trust Preferred Security certificate
will be issued for the Trust Preferred Securities, representing in the
aggregate the total number of Trust Preferred Securities, and will be
deposited with DTC.
DTC is a limited purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Exchange
Act. DTC holds securities that its participants (the "Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants (the "Direct Participants")
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is owned by a number of
its Direct Participants and by The New York Stock Exchange, Inc., the
American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks and trust companies that clear through
or maintain custodial relationships with Direct Participants, either directly
or indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the Commission.
27
<PAGE>
Purchases of Trust Preferred Securities within the DTC system must be
made by or through Direct Participants, which will receive a credit for the
Trust Preferred Securities on DTC's records. The ownership interest of each
actual purchaser of each Trust Preferred Security (the "Beneficial Owner") is
in turn to be recorded on the Direct Participant and Indirect Participants'
records. Beneficial Owners will not receive written confirmation from DTC of
their purchases, but Beneficial Owners are expected to receive written
confirmations providing details of the transactions, as well as periodic
statements of their holdings, from the Direct Participant or Indirect
Participants through which the Beneficial Owners purchased Trust Preferred
Securities. Transfers of ownership interests in the Trust Preferred
Securities are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Trust
Preferred Securities, except in the event that use of the book-entry system
for the Trust Preferred Securities is discontinued.
To facilitate subsequent transfers, all Trust Preferred Securities
deposited by Participants with DTC are registered in the name of DTC's
partnership nominee, Cede & Co. The deposit of Trust Preferred Securities
with DTC and their registration in the name of Cede & Co. effect no change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners
of the Trust Preferred Securities; DTC's records reflect only the identity of
the Direct Participants to whose accounts such Trust Preferred Securities are
credited, which may or may not be the Beneficial Owners. The Participants
will remain responsible for keeping account of their holdings on behalf of
their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners and the voting
rights of Direct Participants, Indirect Participants and Beneficial Owners
will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. as the registered holder
of the Trust Preferred Securities. If less than all of the Trust Preferred
Securities are being redeemed, DTC's current practice is to determine by lot
the amount of the interest of each Direct Participant to be redeemed.
Neither DTC nor Cede & Co. will itself consent or vote with respect to
Trust Preferred Securities. Under its usual procedures, DTC would mail an
omnibus proxy (the "Omnibus Proxy") to the Issuer as soon as possible after
the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting
rights to those Direct Participants to whose accounts such Trust Preferred
Securities are credited on the record date (identified in a listing attached
to the Omnibus Proxy).
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Redemption proceeds and distributions on the Trust Preferred Securities
held in book entry only form will be made to Cede & Co., as nominee of DTC.
DTC's practice is to credit Direct Participants' accounts, upon DTC's receipt
of funds and correspondence detail information from the Issuer or the paying
agent for the Trust Preferred Securities on the relevant payment date in
accordance with their respective holdings shown on DTC's records has reason
to believe that it will not receive payments on such payment date. Payments
by Participants to Beneficial Owners will be governed by standing
instructions and customary practices and will be the responsibility of such
Participant and not of DTC, the paying agent for the Trust Preferred
Securities, the Issuer or the Company, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of redemption
proceeds and Distributions to DTC is the responsibility of the Issuer or the
paying agent for the Trust Preferred Securities, disbursement of such
payments to Direct Participants is the responsibility of DTC and
disbursements of such payments to the Beneficial Owners is the responsibility
of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depositary with
respect to any of the Trust Preferred Securities at any time by giving
reasonable notice to the Issuer or the paying agent for the Trust Preferred
Securities. Under such circumstances, in the event that a successor
securities depositary is not obtained, definitive Trust Preferred Security
certificates representing such Trust Preferred Securities are required to be
printed and delivered. The Company, at its option, may decide to discontinue
use of the system of book-entry transfers through DTC (or a successor
depositary). After a Debenture Event of Default, any holder of a Trust
Preferred Security may request his Trust Preferred Security in certificated
form. In any such event, definitive certificates for such Trust Preferred
Securities will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that the Issuer and the Company believe
to be accurate, but the Issuer and the Company assume no responsibility for
the accuracy thereof. The Issuer and the Company have no responsibility for
the performance by DTC or the Participants of their respective obligations as
described herein or under the rules and procedures governing their respective
operations.
Registrar and Transfer Agent
The Property Trustee will initially act as registrar and transfer agent
for the Trust Preferred Securities. Registration of transfers of Trust
Preferred Securities not held in book-entry form will be effected, subject to
such reasonable regulations as the Property Trustee may prescribe, without
charge by or on behalf of the Issuer, but upon payment of any tax or other
governmental charges that may be imposed in connection with any transfer or
exchange. The registrar and transfer agent shall not be required (i) to
issue, register the transfer of or exchange any Trust Preferred Security not
held in book-entry form during a period beginning at the opening of business
15 days before the day of selection for redemption of such Trust Preferred
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Securities 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. So long as the Trust Preferred
Securities are held in book-entry form by DTC, registrations and transfers of
Trust Preferred Securities will be made as set forth under "-- Book-Entry
Issuance."
Subordination of Common Securities
Payment of Distributions (including any Additional Amounts) on, and the
redemption price of, and the Liquidation Distributions in respect of the
Trust Securities, as applicable, shall be made subject to allocation
provisions relating to the proceeds of partial redemptions of Junior
Subordinated Debentures described under the first paragraph under "--
Redemption," pro rata based on the Liquidation Amount of such Trust
Securities; provided, however, that if on any Distribution Date, Redemption
Date or Liquidation Date a Debenture Event of Default attributable to the
failure of the Company to pay interest or premium, if any, on or principal of
the Junior Subordinated Debentures on the date on which such payment is due
and payable, shall have occurred and be continuing, no payment of any
Distribution on, or 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 of the 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 of the 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 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 redemption price of, the Trust Preferred Securities then due
and payable.
In the case of any Event of Default resulting from a Debenture Event of
Default, the Company as holder of the Common Securities will have no right to
act with respect to any such Event of Default under the Trust Agreement until
the effect of all such Events of Default with respect to such Trust Preferred
Securities have been cured, waived or otherwise eliminated. Until all such
Events of Default 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 such Trust Preferred Securities and not on behalf
of the Company as holder of the Common Securities, and only the holders of
such Trust Preferred Securities will have the right to direct the Property
Trustee to act on their behalf.
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Dissolution and Liquidation; Distribution Upon Dissolution
Pursuant to the Trust Agreement, the Issuer shall automatically dissolve
upon the expiration of its term and shall dissolve on the first to occur of:
(i) certain events of bankruptcy, dissolution or liquidation of the Company;
(ii) the distribution of a Like Amount of the Junior Subordinated Debentures
to the holders of the Trust Securities, if the Company, as holder of the
Common Securities, has given written direction to the Property Trustee to
dissolve the Issuer; (iii) redemption of all of the outstanding Trust
Preferred Securities in connection with a redemption of all of the Junior
Subordinated Debentures; and (iv) the entry of an order for the dissolution
of the Issuer by a court of competent jurisdiction.
Except as set forth in the following paragraph if an early dissolution
occurs as the result of an event described in clause (i), (ii) or (iv) above,
or upon the expiration of the term of the Issuer, the Issuer 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 as provided by applicable law, to the holders of
such Trust Securities in exchange therefor a Like Amount of the Junior
Subordinated Debentures. Notice of liquidation shall be given by the Property
Trustee not less than 30 nor more than 60 days prior to the liquidation to
each holder of Trust Securities (which, with respect to Trust Preferred
Securities in book-entry form, will be DTC) at such holder's address as it
appears in its register.
Notwithstanding the preceding paragraph, if the distribution of Junior
Subordinated Debentures is determined by the Property Trustee not to be
practical, the holders of the Trust Securities will be entitled to receive
out of the assets of the Issuer available for distribution to holders, after
satisfaction of liabilities to creditors of the Issuer as provided by
applicable law, an amount equal to the Liquidation Distribution in respect
thereof. If such Liquidation Distribution can be paid only in part because
the Issuer has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by the Issuer on
the Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts) except as provided under "-- Subordination of Common
Securities."
In order to effect the distribution of the Junior Subordinated
Debentures to the Holders of Trust Securities, 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. After the
liquidation date, (i) the Trust Securities will no longer be deemed to be
outstanding under the Trust Agreement, (ii) certificates representing a Like
Amount of Junior Subordinated Debentures will be issued to holders of Trust
Securities upon surrender of such Trust Securities to the exchange agent
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for exchange, (iii) the Company shall use its best efforts to have the Junior
Subordinated 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 not so surrendered for exchange will be
deemed to represent a Like Amount of Junior Subordinated Debentures bearing
accrued and unpaid interest in an amount equal to the accumulated and unpaid
Distributions on such Trust Securities until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to holders of Trust Securities with
respect to such Junior Subordinated Debentures) and (v) all rights of holders
holding Trust Securities will cease, except the right of such holders to
receive Junior Subordinated Debentures upon surrender of Trust Securities.
See "Description of Junior Subordinated Debentures -- Distribution of Junior
Subordinated Debentures."
Under current United States federal income tax law, a distribution of
Junior Subordinated Debentures in exchange for Trust Preferred Securities
should not be a taxable event to holders of the Trust Preferred Securities.
Should there be a change in law, a change in legal interpretation, a Tax
Event or other circumstances, however, the distribution of the Junior
Subordinated Debentures could be a taxable event to holders of the Trust
Preferred Securities. See "Certain Federal Income Tax Consequences --
Distribution of Junior Subordinated Debentures to Holders of Trust Preferred
Securities." If the Company elects neither to redeem the Junior Subordinated
Debentures prior to their Stated Maturity nor to dissolve the Issuer and
distribute the Junior Subordinated Debentures to holders of the Trust
Preferred Securities in exchange therefor, the Trust Preferred Securities
will remain outstanding until the Stated Maturity of the Junior Subordinated
Debentures.
There can be no assurance as to the market prices for the Trust
Preferred Securities or the Junior Subordinated Debentures that may be
distributed in exchange for Trust Preferred Securities if a dissolution and
liquidation of the Issuer were to occur. Accordingly, the Trust Preferred
Securities that an investor may purchase, or the Junior Subordinated
Debentures that the investor may receive on dissolution and liquidation of
the Issuer, may trade at a discount to the price that the investor paid to
purchase the Trust Preferred Securities offered hereby.
Events of Default; Notice; Right to Direct Remedies
Any one of the following events constitutes an "Event of Default" under
the Trust Agreement (whatever the reason for such Event of Default 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):
(i) the occurrence of a Debenture Event of Default (see
"Description of Junior Subordinated Debentures -- Debenture Events of
Default"); or
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(ii) default by the Issuer in the payment of any Distribution
when it becomes due and payable and continuation of such default for
a period of 30 days; or
(iii) default by the Issuer in the payment of any redemption
price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Issuer Trustees in the
Trust Agreement (other than those specified in clause (ii) or (iii)
above), and continuation of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to
the defaulting Issuer Trustees and the Company, as 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" under the Trust Agreement;
or
(v) the occurrence of certain events of bankruptcy or
insolvency with respect to the Property Trustee and the failure by
the Company to appoint a successor Property Trustee within 90 days
thereof.
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 specified in the Trust Agreement notice of such Event of
Default to the holders of the Trust Preferred Securities, the Administrative
Trustees and the Company, as Depositor, unless such Event of Default shall
have been cured or waived. 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 the Trust Agreement shall have obtained
actual knowledge of such Event of Default.
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 Junior
Subordinated Debentures fail to declare the principal of all of the Junior
Subordinated 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 Company and the Debenture Trustee.
At any time after a declaration of acceleration with respect to the
Junior Subordinated 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 more than 50% of the
aggregate Liquidation Amount of the Trust Preferred Securities, by written
notice to the Property Trustee, the Company,as Depositor, and the Debenture
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Trustee, may rescind and annul such declaration and its consequences if (i)
the Company, as Depositor, has paid or deposited with the Debenture Trustee
a sum sufficient to pay (a) all overdue installments of interest on all of
the Junior Subordinated Debentures, (b) any accrued Additional Interest on
all of the Junior Subordinated Debentures, (c) the principal of (and premium,
if any, on) any Junior Subordinated Debentures that have become due otherwise
than by such declaration of acceleration and interest and Additional Interest
thereon at the rate borne by the Junior Subordinated 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 Junior Subordinated
Debentures, other than the non-payment of the principal of the Junior
Subordinated Debentures that has become due solely by such acceleration, have
been cured or waived as provided in the Indenture.
The Holders of more than 50% of the aggregate 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 as to the
Junior Subordinated Debentures, 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
Junior Subordinated Debenture. No such rescission shall affect any subsequent
default or impair any right consequent thereon.
For so long as any Trust Preferred Securities remain outstanding, to the
fullest extent permitted by law and subject to the terms of the Trust
Agreement and the Indenture, upon a Debenture Event of Default attributable
to the failure of the Company to pay interest or premium, if any, on or
principal of the Junior Subordinated Debentures on the date on which such
payment is due and payable, any holder of Trust Preferred Securities shall
have the right to institute a Direct Action under the Indenture against the
Company. Except as set forth in this paragraph and the previous three
paragraphs, 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 Junior Subordinated Debentures.
Subject to the limitations described in the previous four paragraphs,
the holders of more than 50% of the 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 the Trust Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
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So long as any Junior Subordinated Debentures are held by the Property
Trustee, 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 executing any trust or power conferred on the Property Trustee
with respect to such Junior Subordinated Debentures, (ii) waive any past
default that is waivable under the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior
Subordinated Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or such Junior
Subordinated Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the holders of more than 50% of
the aggregate Liquidation Amount of all outstanding Trust Preferred
Securities; provided, however, that where a consent under the Indenture would
require the consent of each holder of Junior Subordinated Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior consent of each holder of the 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 subsequent
vote of the holders of the Trust Preferred Securities. The Property Trustee
shall notify each holder of Trust Preferred Securities of any notice of
default with respect to the Junior Subordinated 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 obtain an opinion of counsel experienced in such matters to the
effect that the Issuer will not be classified as an association taxable as a
corporation for United States federal income tax purposes on account of such
action and such action would not cause the Issuer to be classified as other
than a grantor trust for United States federal income tax purposes.
Mergers, Consolidations, Amalgamations or Replacements of the Issuer
The Issuer 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 person, except as
described below or as described in "Dissolution and Liquidation;
Distribution Upon Dissolution." The Issuer may, at the request of the
Company, with the consent of the Administrative Trustees and without the
consent of the holders of the Trust Preferred Securities, 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 with
respect to the Trust Preferred Securities or (b) substitutes for the Trust
Preferred Securities other securities having substantially the same terms as
the Trust Preferred Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Trust Preferred Securities in
priority with respect to distributions and payments upon liquidation,
redemption and otherwise, (ii) the Company expressly appoints a trustee of
such successor entity possessing the same powers and duties as the Property
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Trustee as the holder of the Junior Subordinated 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 notification of issuance, on any national securities exchange or
other self-regulatory organization on which 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, (vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Company has received an opinion from
independent counsel to the Issuer experienced in such matters 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 nor such successor entity will be required to register as
an investment company under the Investment Company Act of 1940, as amended
(the "Investment Company Act") and (viii) the Company or any permitted
successor or assignee 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 (the
"Successor Guarantees") or any permitted successor or assignee guarantees the
obligations of the Company or such successor entity under the Successor
Guarantees at least to the extent provided by the Guarantee. Notwithstanding
the foregoing, the Issuer 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 or the successor entity to be classified as an
association taxable as a corporation or as other than a grantor trust for
United States federal income tax purposes.
Resignation and Removal of Issuer Trustees; Appointment of Successors
No resignation or removal of any Issuer Trustee (the "Relevant Trustee")
and no appointment of a successor Issuer Trustee pursuant to the Trust
Agreement shall become effective until the acceptance of appointment by the
successor Issuer Trustee in accordance with the applicable requirements of
the Trust Agreement.
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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 an
instrument of acceptance by the successor Trustee 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 the 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 more than
50% of the Liquidation Amount of the Trust Preferred Securities. 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.
Co-trustees and Separate Property Trustee
Unless an Event of Default shall have occurred and be continuing, at any
time or from time to time, 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 (as defined below) may at the time be located, the Company, as
Depositor, and the Administrative Trustees shall have power to appoint one or
more persons either to act as a co-trustee, jointly with the Property
Trustee, of all or any part of the Trust Property, or to the extent required
by law, 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 such capacity any property, title, right or
power deemed necessary or desirable, subject to the provisions of the Trust
Agreement. In case a Debenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment.
"Trust Property" means (i) the Junior Subordinated Debentures, (ii) any
cash on deposit in, or owing to the payment account created under the Trust
Agreement and (iii) all proceeds and rights in respect of the foregoing and
any other property or assets held by the Property Trustee pursuant to the
trusts of the Trust Agreement.
Merger or Consolidation of Issuer Trustees
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 Trustee shall be a
party, or any person succeeding to all or substantially all the corporate
trust business of such Trustee, shall be the successor of such Trustee under
the Trust Agreement, provided such person shall be otherwise qualified and
eligible.
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Responsibilities of the Property Trustee
The Property Trustee, other than during the occurrence and continuance
of an Event of Default, undertakes to perform only such duties as are
specifically set forth in the Trust Agreement and, after such Event of
Default, must exercise the same degree of care and skill as a prudent person
would exercise or use in the conduct of his or her own affairs. Subject to
this provision, the Property Trustee is under no obligation to exercise any
of the powers vested in it by the Trust Agreement at the request of any
holder of Trust Preferred Securities unless it is offered reasonable
indemnity against the costs, expenses and liabilities that might be incurred
thereby; provided that, such right to indemnity shall in no event 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 the Trust Agreement. If no
Event of Default has occurred and is continuing and the Property Trustee is
required to decide between alternative causes of action, construe ambiguous
provisions in the Trust Agreement or is unsure of the application of any
provision of the Trust Agreement, and the matter is not one on which holders
of Trust Preferred Securities are entitled under the Trust Agreement to vote,
then the Property Trustee shall take such action as is directed by the
Company and if not so directed, shall take such action as it deems advisable
and in the best interests of the holders of the Trust Securities and will
have no liability except for its own bad faith, gross negligence or willful
misconduct.
Amendment of Trust Agreement
The Trust Agreement may be amended from time to time by the Company, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Trust Preferred Securities, (i) to cure any ambiguity, correct
or supplement any provisions in the Trust Agreement that may be inconsistent
with any other provision, or to make any other provisions with respect to
matters or questions arising under the Trust Agreement, which shall not be
inconsistent with the other provisions of the Trust Agreement or (ii) to
modify, eliminate or add to any provisions of the Trust Agreement to such
extent as shall be necessary to ensure that the Issuer will be classified for
United States federal income tax purposes as a grantor trust or as other than
an association taxable as a corporation at all times that any Trust
Securities are outstanding or to ensure that the Issuer 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 of Trust Preferred Securities, and any such amendments of such
Trust Agreement shall become effective when notice thereof is given to the
holders of Trust Securities. The Trust Agreement may be amended by the
Issuer Trustees and the Company with (i) the consent of holders more than 50%
of the aggregate Liquidation Amount of the outstanding 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 to
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be taxable as a corporation or affect the Issuer's status as a grantor trust
for United States federal income tax purposes or the Issuer's exemption from
status as an "investment company" under the Investment Company Act; provided
that without the consent of each holder of Trust Securities, the 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 of Trust
Securities to institute suit for the enforcement of any such payment on or
after such date.
Any required approval of holders of Trust Preferred Securities may be
given at a meeting of holders of Trust Preferred Securities convened for such
purpose or pursuant to written consent. The Property Trustee will cause a
notice of any meeting at which holders of Trust Preferred Securities are
entitled to vote to be given to each holder of record of Trust Preferred
Securities in the manner set forth in the Trust Agreement.
No vote or consent of the holders of Trust Preferred Securities will be
required for the Issuer to redeem and cancel the Trust Preferred Securities
in accordance with the Trust Agreement.
Governing Law
The Trust Agreement will be governed by and construed in accordance with
the laws of the State of Delaware.
Miscellaneous
The Company, as Depositor, and the Administrative Trustees are required
to file annually with the Property Trustee a certificate as to whether or not
they are in compliance with all the conditions and covenants applicable to
them under the Trust Agreement.
The Property Trustee and the Administrative Trustees are authorized and
directed to conduct the affairs of and to operate the Issuer in such a way
that no Issuer will be deemed to be an "investment company" required to be
registered under the Investment Company Act or classified as an association
taxable as a corporation or as other than a grantor trust for United States
federal income tax purposes and so that the Junior Subordinated Debentures
will be treated as indebtedness of the Company for United States federal
income tax purposes. In this connection, each Administrative Trustee, the
Property Trustee and the holders of more than 50% of the aggregate
Liquidation Amount of the Common Securities are authorized to take any
action, not inconsistent with applicable law, the certificate of trust of the
Issuer or the Trust Agreement, that the Administrative Trustees, the Property
Trustee or the holders of more than 50% of the aggregate Liquidation Amount
of the Common Securities determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the Trust Preferred
Securities.
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The Property Trustee will initially serve as paying agent under the
Trust Agreement with respect to the Trust Preferred Securities. Any paying
agent with respect to the Trust Preferred Securities shall be permitted to
resign as paying agent upon 30 days written notice to the Property Trustee
and the Company. In the event that the Property Trustee shall no longer be
the paying agent, the Administrative Trustees shall appoint a successor
(which shall be a bank or trust company acceptable to the Administrative
Trustees and the Company) to act as paying agent.
Holders of the Trust Preferred Securities have no preemptive or similar
rights.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures are to be issued under a Junior
Subordinated Indenture, as supplemented from time to time (as so
supplemented, the "Indenture"), between the Company and The Bank of New York,
as trustee (the "Debenture Trustee"). This summary of certain terms and
provisions of the Junior Subordinated Debentures and the Indenture, which
summarizes the material provisions thereof, does not purport to be complete
and is subject to, and is qualified in its entirety by reference to, the
Indenture, the form of which is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part, and to the Trust Indenture
Act, to each of which reference is hereby made. Whenever particular defined
terms of the Indenture are referred to herein, such defined terms are
incorporated herein or therein by reference.
The Indenture permits the issuance from time to time of debt securities
thereunder in addition to the Junior Subordinated Debentures ("Additional
Junior Subordination Debt Securities," which, together with the Junior
Subordinated Debentures, will be referred to herein as the "Junior
Subordinated Debt Securities"), and the Junior Subordinated Debentures will
rank on a parity with such Additional Junior Subordinated Debt Securities,
all of which will be unsecured and subordinate and junior in right of
payment to the extent and in the manner set forth in the Indenture to all
Senior Debt of the Company. The Indenture does not limit the incurrence or
issuance of other secured or unsecured debt of the Company, including Senior
Debt, whether under the Indenture, any other existing indenture or any other
indenture that the Company may enter into in the future or otherwise. See "
- -- Subordination." The Company expects from time to time to incur additional
indebtedness constituting Senior Debt.
Concurrently with the issuance of the Trust Preferred Securities, the
Issuer will invest the proceeds thereof, together with the consideration paid
by the Company for the Common Securities, in the Junior Subordinated
Debentures. The Junior Subordinated Debentures will be issued in an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Trust Preferred Securities plus the aggregate Liquidation Amount of the
Common Securities. The Junior Subordinated Debentures will mature on _______
1, 20__ and will bear interest at the annual rate of ______% of the principal
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amount thereof, payable quarterly in arrears on March 31, June 30, September
30 and December 31 of each year (each, an "Interest Payment Date"),
commencing December 31, 1997, to the person in whose name each Junior
Subordinated Debenture is registered, subject to certain exceptions, at the
close of business on the date that is 15 days preceding such Interest Payment
Date. It is anticipated that, until the liquidation, if any, of the Issuer,
the Junior Subordinated Debentures will be held in the name of the Property
Trustee in trust for the benefit of the Issuer and the holders of the Trust
Securities. The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. In the event that
any date on which interest is payable on the Junior Subordinated Debentures
is not a Business Day, then payment of the interest payable on such date will
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, such payment shall be
made on the immediately preceding Business Day, in each case with the same
force and effect as if made on the date such payment was originally payable.
Accrued interest that is not paid on the applicable Interest Payment Date
will bear additional interest on the amount thereof (to the extent permitted
by law) at the rate per annum of ______% thereof, compounded quarterly from
the relevant Interest Payment Date. The term "interest" as used herein shall
include quarterly interest payments, interest on quarterly interest payments
not paid on the applicable Interest Payment Date and Additional Sums, as
applicable.
Redemption
The Junior Subordinated Debentures are redeemable prior to Stated
Maturity at the option of the Company (i) on or after __________ 1, 2002, in
whole at any time or in part from time to time or (ii) prior to __________ 1,
2002, in whole (but not in part) within 90 days following the occurrence of
a Tax Event. The Junior Subordinated Debentures will not be subject to any
sinking or purchase fund.
Junior Subordinated Debentures in denominations larger than $25 may be
redeemed in part but only in integral multiples of $25. The redemption price
for any Junior Subordinated Debenture so redeemed shall equal any accrued and
unpaid interest (including Additional Interest) thereon to the redemption
date, plus 100% of the principal amount thereof.
Notice of any redemption will be mailed at least 45 days but not more
than 75 days before the redemption date to each holder of Junior Subordinated
Debentures to be redeemed at its registered address. Unless the Company
defaults in payment of the redemption price, on and after the redemption date
interest shall cease to accrue on such Junior Subordinated Debentures or
portions thereof called for redemption.
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Denominations, Registration and Transfer
The Junior Subordinated Debentures will be issuable only in registered
form without coupons in denominations of $25 and any integral multiple
thereof. Junior Subordinated Debentures not held in book-entry form will be
exchangeable for other Junior Subordinated Debentures of any authorized
denominations, of a like aggregate principal amount, of the same original
issue date and Stated Maturity and bearing the same interest rate.
Junior Subordinated Debentures not held in book-entry form may be
presented for exchange as provided above and may be presented for
registration of transfer (with the form of transfer endorsed thereon, or a
satisfactory written instrument of transfer, duly executed) at the office of
the securities registrar or at the office of any transfer agent designated by
the Company for such purpose with respect to any series of Junior
Subordinated Debentures without service charge and upon payment of any taxes
and other governmental charges as described in the Indenture. The Company
will appoint the Debenture Trustee as securities registrar and transfer agent
under the Indenture. The Company may at any time rescind the designation of
any such transfer agent or approve a change in the location through which any
such transfer agent acts, provided that the Company maintains a transfer
agent in each place of payment for such series. The Company may at any time
designate additional transfer agents with respect to any series of Junior
Subordinated Debentures.
In the event of any redemption, neither the Company nor the Debenture
Trustee shall be required to (i) issue, register the transfer of or exchange
Junior Subordinated Debentures during the period beginning at the opening of
business 15 days before the day of selection for redemption of the Junior
Subordinated Debentures and ending at the close of business on the day of
mailing of the relevant notice of redemption or (ii) transfer or exchange any
Junior Subordinated Debentures so selected for redemption, except, in the
case of any Junior Subordinated Debentures being redeemed in part, any
portion thereof not to be redeemed.
Option to Defer Interest Payments
So long as no Debenture Event of Default has occurred and is continuing,
the Company has the right under the Indenture at any time or from time to
time during the term of the Junior Subordinated Debentures to defer payment
of interest on the Junior Subordinated Debentures for a period not exceeding
20 consecutive quarterly periods with respect to each Extension Period,
provided that no Extension Period may extend beyond the Stated Maturity of
the Junior Subordinated Debentures. At the end of such
Extension Period, the Company must pay all interest then accrued and unpaid
on the Junior Subordinated Debentures (together with interest on such unpaid
interest at the annual rate of ______%, compounded quarterly from the
relevant Interest Payment Date, to the extent permitted by applicable law
("Additional Interest")). During an Extension Period, interest will continue
to accrue and holders of Junior Subordinated Debentures (or holders of Trust
Preferred Securities while the Trust Preferred Securities are outstanding)
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will be required to accrue interest income for United States federal income
tax purposes. See "-- Restrictions on Certain Payments" and "Certain Federal
Income Tax Consequences -- Interest Income and Original Issue Discount."
During any such Extension Period, the Company will not be permitted,
subject to certain exceptions, to declare or pay any cash distributions with
respect to the Company's capital stock or debt securities that rank on a
parity with or junior to the Junior Subordinated Debentures as described
under "-- Restrictions on Certain Payments." Prior to the termination of any
such Extension Period, the Company may further defer the payment of interest
on the Junior Subordinated Debentures, provided that no Extension Period may
exceed 20 consecutive quarterly periods or extend beyond the Stated Maturity
of the Junior Subordinated Debentures or end on a date other than an Interest
Payment Date. Upon the termination of any such Extension Period and the
payment of all interest then accrued and unpaid and any Additional Interest
then due on the Interest Payment Date, the Company may elect to begin a new
Extension Period subject to the above conditions. No interest or Additional
Interest shall be due and payable during an Extension Period, except at the
end thereof.
The Company must give the holders of the Junior Subordinated Debentures
and the Debenture Trustee notice of its election to begin such Extension
Period at least one Business Day prior to the next succeeding Interest
Payment Date, or with respect to the Junior Subordinated Debentures while
held by the Property Trustee, at least one Business Day prior to the earlier
of (i) the next succeeding date on which Distributions on the Trust Preferred
Securities would be payable but for such deferral and (ii) the date on which
the Property Trustee is required to give notice to any securities exchange or
other applicable self-regulatory organization or to holders of the Trust
Preferred Securities of the applicable record date or the date such
distribution is payable. The Debenture Trustee shall give notice of the
Company's election to begin a new Extension Period to the holders of the
Junior Subordinated Debentures. There is no limitation on the number of
times that the Company may elect to begin an Extension Period.
Additional Sums
If the Issuer is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Company will pay as
Additional Sums on the Junior Subordinated Debentures such amounts as shall
be required so that the Distributions payable by the Issuer shall not be
reduced as a result of any such additional taxes, duties or other
governmental charges.
Restrictions on Certain Payments
The Company will covenant as to the Junior Subordinated Debentures that
it will not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Company's capital stock or (ii) make any payment of principal of or interest
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or premium, if any, on or repay or repurchase or redeem any debt securities
of the Company (including other Junior Subordinated Debentures) that rank
pari passu in all respects with or junior in interest to the Junior
Subordinated Debentures (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for
the benefit of one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase plan or
in connection with the issuance of capital stock of the Company (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the
applicable Extension Period, (b) as a result of an exchange or conversion of
any class or series of the Company's capital stock (or any capital stock of
a subsidiary of the Company) for any class or series of the Company's capital
stock, or of any class or series of the Company's indebtedness for any class
or series of the Company's capital stock, (c) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted
or exchanged, (d) any declaration of a dividend in connection with any Rights
Plan (as defined below) or the issuance of rights, stock or other property
under any Rights Plan, or the redemption or repurchase of rights pursuant
thereto or (e) any dividend in the form of stock, warrants, options or other
rights where the dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock), if
at such time (i) there shall have occurred any event of which the Company has
actual knowledge that with the giving of notice or the lapse of time, or
both, would constitute an Event of Default with respect to the Junior
Subordinated Debentures of such series and in respect of which the Company
shall not have taken reasonable steps to cure, (ii) if such Junior
Subordinated Debentures are held by the Issuer, the Company shall be in
default with respect to its payment of any obligations under the Guarantee or
(iii) the Company shall have given notice of its election to begin an
Extension Period as provided in the Indenture with respect to the Junior
Subordinated Debentures and shall not have rescinded such notice, or such
Extension Period, or any extension thereof, shall be continuing.
"Rights Plan" means a plan of the Company providing for the issuance to
all holders of its common stock of rights entitling the holders thereof to
subscribe for or purchase shares of any class or series of capital stock of
the Company which rights (i) are deemed to be transferred with such shares of
common stock and (ii) are also issued in respect of future issuances of such
common stock, in each case until the occurrences of a specified event or
events.
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Subordination
The Junior Subordinated Debt Securities will be subordinate in right of
payment, to the extent set forth in the Indenture, to all Senior Debt of the
Company. Substantially all of the existing indebtedness of the Company
constitutes Senior Debt. If the Company defaults in the payment of any
principal, premium, if any, or interest, if any, or any other amount payable
on any Senior Debt when the same becomes due and payable, whether at maturity
or at a date fixed for redemption or by declaration of acceleration or
otherwise, then, unless and until such default has been cured or waived or
has ceased to exist or all Senior Debt of the Company has been paid, no
direct or indirect payment (in cash, property, securities, by setoff or
otherwise) may be made or agreed to be made on the Junior Subordinated Debt
Securities or in respect of any redemption, repayment, retirement, purchase
or other acquisition of any of the Junior Subordinated Debt Securities.
"Senior Indebtedness" means any obligation of the Company to its
creditors, whether now outstanding or subsequently incurred, other than any
obligation as to which, in the instrument creating or evidencing the
obligation or pursuant to which the obligation is outstanding, it is provided
that such obligation is not Senior Indebtedness. "Senior Subordinated
Indebtedness" means any obligation of the Company to its creditors, whether
now outstanding or subsequently incurred, where the instrument creating or
evidencing the obligation or pursuant to which the obligation is outstanding,
provides that it is subordinate and junior in right of payment to Senior
Indebtedness. Senior Subordinated Indebtedness also includes any
subordinated debt securities issued in the future by the Company with
substantially similar subordination terms, but does not include the Junior
Subordinated Debt Securities of any series or any junior subordinated debt
securities issued in the future with subordination terms substantially
similar to those of the Junior Subordinated Debt Securities. Senior
Indebtedness does not include Senior Subordinated Indebtedness or the Junior
Subordinated Debt Securities.
"Senior Debt" means (i) Senior Indebtedness of the Company (but
excluding trade accounts payable and accrued liabilities arising in the
ordinary course of business) and (ii) the Allocable Amounts of Senior
Subordinated Indebtedness of the Company.
"Allocable Amounts," when used with respect to any Senior Subordinated
Indebtedness of the Company means the amounts necessary to pay all principal
of (and premium, if any) and interest, if any, on such Senior Subordinated
Indebtedness in full less, if applicable, any portion of such amounts which
would have been paid to and retained by the holders of such Senior
Subordinated Indebtedness (whether as a result of the receipt of payments by
the holders of such Senior Subordinated Indebtedness from the Company or any
other obligor thereon or from any holders of, or trustee in respect of, other
indebtedness that is subordinate and junior in right of payment to such
Senior Subordinated Indebtedness pursuant to any provision of such
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indebtedness for the payment over of amounts received on account of such
indebtedness to the holders of such Senior Subordinated Indebtedness) but for
the fact that such Senior Subordinated Indebtedness is subordinate or junior
in right of payment to trade accounts payable or accrued liabilities arising
in the ordinary course of business.
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property, (ii) any
proceeding for the liquidation, dissolution or other winding up of the
Company, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings, (iii) any assignment by the Company for the benefit
of creditors or (iv) any other marshalling of the assets of the Company, all
Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) of the Company shall first be paid in full before
any payment or distribution, whether in cash, securities or other property,
shall be made on account of the Junior Subordinated Debt Securities. In such
event, any payment or distribution on account of the Junior Subordinated Debt
Securities, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Junior Subordinated Debt Securities to the
payment of all Senior Debt of the Company at the time outstanding and to any
securities issued in respect thereof under any such plan of reorganization or
readjustment), that would otherwise (but for the subordination provisions) be
payable or deliverable in respect of the Junior Subordinated Debt Securities
of any series will be paid or delivered directly to the holders of Senior
Debt of the Company in accordance with the priorities then existing among
such holders until all Senior Debt of the Company (including any interest
thereon accruing after the commencement of any such proceedings) has been
paid in full.
In the event of any such proceeding, after payment in full of all sums
owing with respect to Senior Debt of the Company, the holders of Junior
Subordinated Debt Securities, together with the holders of any obligations of
the Company ranking on a parity with the Junior Subordinated Debt Securities
(which for this purpose only shall include the Allocable Amounts of Senior
Subordinated Indebtedness), will be entitled to be paid from the remaining
assets of the Company the amounts at the time due and owing on the Junior
Subordinated Debt Securities and such other obligations before any payment or
other distribution, whether in cash, property or otherwise, will be made on
account of any capital stock or obligations of the Company ranking junior to
the Junior Subordinated Debt Securities and such other obligations. If any
payment or distribution by the Company on account of any character or any
security, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Junior Subordinated Debt Securities to the
payment of all Senior Debt of the Company at the time outstanding and
to any securities issued in respect
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thereof under any such plan of reorganization or readjustment) shall be
received by the Debenture Trustee or any holder of any Junior Subordinated
Debt Security in contravention of any of the terms of the Indenture and
before all the Senior Debt of the Company has been paid in full, such payment
or distribution or security will be received in trust for the benefit of, and
must be paid over or delivered and transferred to, the holders of the Senior
Debt of the Company at the time outstanding in accordance with the priorities
then existing among such holders for application to the payment of all Senior
Debt of the Company remaining unpaid to the extent necessary to pay all such
Senior Debt of the Company in full. By reason of such subordination, in the
event of the insolvency of the Company, holders of Senior Debt of the Company
may receive more, ratably, and holders of the Junior Subordinated Debt
Securities may receive less, ratably, than the other creditors of the
Company. Such subordination will not prevent the occurrence of any Debenture
Event of Default.
Distribution of Junior Subordinated Debentures
As described under "Description of Trust Preferred Securities --
Termination and Liquidation; Distribution Upon Termination," under certain
circumstances involving the termination of the Issuer, Junior Subordinated
Debentures may be distributed to the holders of the Trust Preferred
Securities in exchange therefor upon liquidation of the Issuer after
satisfaction of liabilities to creditors of the Issuer as provided by
applicable law. If distributed to holders of Trust Preferred Securities, the
Junior Subordinated Debentures will initially be issued in the form of one or
more global securities and DTC, or any successor depositary for the Trust
Preferred Securities, will act as depositary for the Junior Subordinated
Debentures. It is anticipated that the depositary arrangements for the
Junior Subordinated Debentures would be substantially identical to those in
effect for the Trust Preferred Securities. See "Description of Trust
Preferred Securities -- "Book-Entry Issuance." If Junior Subordinated
Debentures are distributed to the holders of Trust Preferred Securities in
exchange therefor upon liquidation of the Issuer, the Company will use its
best efforts to include the Junior Subordinated Debentures for trading on
such stock exchanges or automated quotation system, if any, on which the
Trust Preferred Securities are then listed or quoted. There can be no
assurance as to the market price of any Junior Subordinated Debentures that
may be distributed to the holders of Trust Preferred Securities.
Debenture Events of Default
The Indenture provides that any one or more of the following described
events with respect to a series of Junior Subordinated Debt Securities that
has occurred and is continuing constitutes a "Debenture Event of Default"
with respect to such series of Junior Subordinated Debt Securities:
(i) default in the payment of any interest upon any Junior
Subordinated Debt Security of that series, including any Additional
Interest in respect thereof, when it becomes due and payable, and
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continuance of such default for a period of 30 days (subject to the
deferral of any due date in the case of an Extension Period);
(ii) default in the payment of the principal of (or premium,
if any, on) any Junior Subordinated Debt Security of that series at
its maturity;
(iii) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Junior Subordinated Debt Securities of that series or
in the Indenture for a period of 90 days after the date on which
written notice of such failure, requiring the Company to remedy the
same, shall have been give to the Company by the Trustee by
registered or certified mail or to the Company and the Debenture
Trustee by the holders of at least 25% in aggregate principal amount
of the outstanding Junior Subordinated Debt Securities of that
series;
(iv) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization of the Company under the Title 11 of the United States
Code or any successor statute, as amended (the "Bankruptcy Code") or
any other similar applicable federal or state law, which decree or
order shall have continued undischarged and unstayed for a period of
60 days; or the entry of a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of the
Company or of its property, or for the winding up or liquidation of
its affairs, which decree or order shall have continued undischarged
and unstayed for a period of 60 days;
(v) the commencement by the Company of voluntary proceedings
to be adjudicated a bankrupt, or consent by the Company to the filing
of a bankruptcy proceeding against it, or the filing by the Company
of a petition or answer or consent seeking reorganization under the
Bankruptcy Code or any other similar federal or state law, or consent
by the Company to the filing of any such petition, or the consent by
the Company to the appointment of a receiver or liquidator or trustee
or assignee in bankruptcy or insolvency of it or of its property, or
the making by the Company of an assignment for the benefit of
creditors, or the admission by the Company in writing of its
inability to pay its debts generally as they become due; or
(vi) any other event of default provided with respect to
Junior Subordinated Debt Securities of that series.
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If a Debenture Event of Default (other than a Debenture Event of Default
specified in clauses (iv) or (v) of the immediately preceding paragraph) with
respect to Junior Subordinates Debt Securities of any series at the time
outstanding occurs and is continuing, then and in every such case the Trustee
or the holders of not less than 25% in aggregate principal amount of the
outstanding Junior Subordinated Debt Securities of that series may declare
the principal amount (or, such portion of the principal amount as may be
specified in the terms of that series) of all the Junior Subordinated Debt
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by holders), provided
that, in the case of the Junior Subordinated Debt Securities of a series
issued to a business trust, if, upon a Debenture Event of Default, the
Debenture Trustee or the holders of not less than 25% in principal amount of
the outstanding Junior Subordinated Debt Securities of such series fail to
declare the principal of all the outstanding Junior Subordinated Debt
Securities of such series to be immediately due and payable, the holders of
at least 25% in aggregate liquidation amount of the related series of
preferred beneficial interests issued by such Business Trust then outstanding
shall have the right to make such declaration by a notice in writing to the
Company and the Trustee; and upon any such declaration such principal amount
(or specified portion thereof) of and the accrued interest (including any
Additional Interest) on all the Junior Subordinated Debt Securities of such
series shall become immediately due and payable. If a Debenture Event of
Default specified in clauses (iv) or (v) of the immediately preceding
paragraph with respect to Junior Subordinated Debt Securities of any series
at the time outstanding occurs, the principal amount of all the Junior
Subordinated Debt Securities of such series (or such portion of the principal
amount of such Junior Subordinated Debt Securities as may be specified by the
terms of that series) shall automatically, and without any declaration or
other action on the part of the Debenture Trustee or any holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Junior Subordinated Debt Securities of any series 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, the holders of a majority in
aggregate principal amount of the outstanding Junior Subordinated Debt
Securities of that series, by written notice to the Company and the Debenture
Trustee, may rescind and annul such declaration and its consequences if (i)
the Company has paid or deposited with the Debenture Trustee a sum sufficient
to pay (a) all overdue installments of interest on all Junior Subordinated
Debt Securities of such series, (b) any accrued Additional Interest on all
Junior Subordinated Debt Securities of such series, (c) the principal of
(and premium, if any, on) any Junior Subordinated Debt Securities of such
series that have become due otherwise than by such declaration of
acceleration and interest and Additional Interest thereon at the rate borne
by the Junior Subordinated Debt Securities 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, its agents and
counsel and (ii) all Debenture Events of Default with respect to Junior
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Subordinated Debt Securities of that series, other than the non-payment of
the principal of Junior Subordinated Debt Securities of that series that has
become due solely by such acceleration, have been cured or waived as provided
in the Indenture.
In the case of Junior Subordinated Debt Securities of a series initially
issued to a business trust if the holders of such Junior Subordinated Debt
Securities fail to annul such declaration and waive such default, the holders
of a majority in aggregate liquidation amount of the related series of
preferred beneficial interests issued by such business trust then outstanding
shall also have the right to rescind and annul such declaration and its
consequences by written notice to the Company and the Debenture Trustee,
subject to the satisfaction of the conditions set forth in clauses (i) and
(ii) above of the immediately preceding paragraph.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Within 90 days after actual knowledge by a responsible officer of the
Debenture Trustee of the occurrence of any default under the Indenture with
respect to the Junior Subordinated Debt Securities of any series, the
Debenture Trustee shall transmit by mail to all holders of Junior
Subordinated Debt Securities of such series, as their names and addresses
appear in the register, notice of such default, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Junior Subordinated Debt Security
of such series, the Debenture Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or responsible officers of the Debenture
Trustee in good faith determines that the withholding of such notice is in
the interests of the holders of Junior Subordinated Debt Securities of such
series; and provided, further, that, in the case of any covenant default, no
such notice to holders of Junior Subordinated Debt Securities of such series
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this paragraph, the term "default" means any event that is, or
after notice or lapse of time or both would become, a Debenture Event of
Default with respect to Junior Subordinated Debt Securities of such series.
Enforcement of Certain Rights by Holders of Trust Preferred Securities
If a Debenture Event of Default with respect to the Junior Subordinated
Debentures has occurred and is continuing and such event is attributable to
the failure of the Company to pay interest or principal on the Junior
Subordinated Debentures on the date such interest or principal is due and
payable, a holder of Trust Preferred Securities may institute a Direct Action
against the Company under the Indenture. The Company may not amend the
Indenture to remove the foregoing right to bring a Direct Action without the
prior written consent of the holders of all of the Trust Preferred Securities
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outstanding. If the right to bring a Direct Action is removed, the Issuer
may become subject to the reporting obligations under the Exchange Act. The
Company shall have the right under the Indenture to setoff any payment made
to such holder of Trust Preferred Securities by the Company in connection
with a Direct Action.
The holders of the Trust Preferred Securities will not be able to
exercise directly any remedies other than those set forth in the preceding
paragraph available to the holders of the Junior Subordinated Debentures
unless there shall have been an Event of Default under the Trust Agreement.
See "Description of Trust Preferred Securities -- Events of Default; Notice;
Right to Direct Remedies."
Consolidation, Merger, Sale of Assets and Other Transactions
The Indenture provides that the Company shall not consolidate with or
merge into any other Person (as defined below) or convey, transfer or lease
its properties and assets substantially as an entirety to any Person, and no
Person shall consolidate with or merge into the Company or convey, transfer
or lease its properties and assets substantially as an entirety to the
Company unless (i) in case the Company consolidates with or merges into
another Person or conveys or transfers its properties and assets
substantially as an entirety to any Person, the successor Person is organized
under the laws of the United States or any state or territory thereof or the
District of Columbia and such successor Person expressly assumes the
Company's obligations on the Junior Subordinated Debt Securities issued under
the Indenture, (ii) immediately after giving effect thereto, no Debenture
Event of Default, and no event which, after notice or lapse of time or both,
would become a Debenture Event of Default, shall have occurred and be
continuing and (iii) certain other conditions as prescribed by the Indenture
are met.
The general provisions of the Indenture do not afford holders of the
Junior Subordinated Debentures protection in the event of a highly leveraged
or other transaction involving the Company that may adversely affect holders
of the Junior Subordinated Debentures.
"Person," as used herein, means a legal person, including any
individual, corporation, estate, partnership, joint venture, trust,
unincorporated association, or government or any agency or political
subdivision thereof or any other entity of whatever nature.
Resignation and Removal of Debenture Trustee; Appointment of a Successor
The Debenture Trustee may resign at any time with respect to the Junior
Subordinated Debentures by giving written notice thereof to the Company. If
an instrument of acceptance by a successor Debenture Trustee shall not have
been delivered to the Debenture Trustee within 30 days after the giving of
such notice of resignation, the resigning Debenture Trustee may petition any
court of competent jurisdiction for the appointment of a successor Debenture
Trustee with respect to the Junior Subordinated Debentures.
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The Debenture Trustee may be removed at any time with respect to the
Junior Subordinated Debentures of the holders of a majority in aggregate
principal amount of the Junior Subordinated Debentures delivered to the
Debenture Trustee and to the Company. In addition, if at any time (i) the
Debenture Trustee shall fail to comply with certain provisions of the
Indenture relating to conflicts of interest under the Trust Indenture Act
after written request therefor by the Company or by any holder who has been
a bona fide holder of a Junior Subordinated Debenture for at least six
months, or (ii) the Debenture Trustee shall cease to meet the eligibility
requirements under the Indenture and shall fail to resign after written
request therefor by the Company or by any such holder or (iii) the Debenture
Trust shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Debenture Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Debenture
Trustee or of its property or affairs for the purpose of rehabilitation,
conversation or liquidation, then, in any such case, (A) the Company may
remove the Debenture Trustee with respect to the Junior Subordinated Debt
Securities of all series issued under the Indenture or (B) subject to the
provisions of the Indenture requiring the holder to undertake to pay certain
related costs, any holder who has been a bona fide holder of a Junior
Subordinated Debenture for at least six months may, on behalf of such holder
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Debenture Trustee with respect to the
Junior Subordinated Debt Securities of all series issued under the Indenture
and the appointment of a successor Debenture Trustee.
If the Debenture Trustee shall resign, be removed or become incapable of
acting, of if a vacancy shall occur in the office of Debenture Trustee for
any cause with respect to the Junior Subordinated Debt Securities of one or
more series, the Company shall promptly appoint a successor Debenture Trustee
with respect to the Junior Subordinated Debt Securities of that or those
series. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Debenture Trustee with respect
to the Junior Subordinated Debt Securities of any series shall be appointed
by the holders of a majority in aggregate principal amount of the outstanding
Junior Subordinated Debt Securities of such series delivered to the Company
and the retiring Debenture Trustee, the successor Debenture Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become
the successor Debenture Trustee with respect to the Junior Subordinated Debt
Securities of such series and supersede the successor Debenture Trustee
appointed by the Company. If no successor Debenture Trustee with respect to
the Junior Subordinated Debt Securities of any series shall have been so
appointed by the Company or the holders and accepted appointment in the
manner as in the Indenture provided, any holder who has been a bona fide
holder of a Junior Subordinated Debt Security of such series for at least six
months may, subject to the provisions of the Indenture requiring the holder
to undertake to pay certain related costs, on behalf of such holder and all
other similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Debenture Trustee with respect to the Junior
Subordinated Debt Securities of such series.
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Merger or Consolidation of Debenture Trustee
Any corporation into which the Debenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Debenture Trustee
shall be a party, or any corporation succeeding to all or substantially all
of the corporate trust business of the Debenture Trustee, shall be the
successor of the Debenture Trustee under the Indenture, provided such
corporation shall be otherwise qualified and eligible under the Indenture,
without the execution or filing of any paper or any further act on the part
of any of the parties to the Indenture.
Modification of Indenture
From time to time the Company and the Debenture Trustee may, without the
consent of the holders of the Junior Subordinated Debt Securities, amend,
waive or supplement the Indenture for specified purposes, including, (i) to
evidence the succession of another person to the Company and the assumption
by the successor of the covenants of the Company contained in the Indenture
and the Junior Subordinated Debt Securities; (ii) to convey transfer, assign,
mortgage or pledge any property to or with the Debenture Trustee or surrender
any right or power of the Company contained in the Indenture; (iii) to
provide for the issuance of and establish the form of any Junior Subordinated
Debt Securities; (iv) to add to the covenants of the Company (which may be
only for the benefit of a single series of Junior Subordinated Debt
Securities); (v) to add additional Debenture Events of Default (which may be
only for its benefit of a single series of Junior Subordinated Debt
Securities); (vi) to cure any ambiguity, to correct or supplement any
provision of the Indenture, or to make provisions with respect to questions
arising under the Indenture provided that such action does not materially
affect the intent of the holders of any series of Junior Subordinated Debt
Securities or, in the case of any Junior Subordinated Debt Securities held by
a business trust, the holders of the preferred beneficial interests in such
business trust; (vii) to evidence or provide for the acceptance of
appointment of a successor Debenture Trustee or to provide for the
administration of the trusts created under the Indenture by more than one
trustee; or (viii) to comply with the requirements of the Commission in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
The Indenture contains additional provisions permitting the Company and
the Debenture Trustee, with the consent of the holders of not less than a
majority in aggregate principal amount of each outstanding series of Junior
Subordinated Debt Securities affected, to modify the Indenture for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of modifying in any manner the
rights of the holders of the Junior Subordinated Debt Securities of such
series; provided, that no such modification may, without the consent of the
holder of each outstanding Junior Subordinated Debt Security so affected:
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(i) change the Stated Maturity of the principal of, or any
installment of interest (including any Additional Interest) on, any
Junior Subordinated Debt Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or change the place of payment where, or the
coin or currency in which, any Junior Subordinated Debt Security or
interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the stated
maturity thereof (or, in the case of redemption, on or after the
redemption date);
(ii) reduce the percentage in aggregate principal amount of
the outstanding Junior Subordinated Debt Securities of any series,
the consent of whose holders is required for any such supplemental
indenture, or the consent of whose holders is required for any waiver
(of compliance with certain provisions of the Indenture or certain
defaults hereunder and their consequences) provided for in the
Indenture; or
(iii) modify any of the provisions of the Indenture described
in this paragraph or certain other provisions of the Indenture
relating to waivers subject to the approval of a requisite principal
amount of Junior Subordinated Debt Securities, except to increase any
such percentage or to provide that certain other provisions of the
Indenture cannot be modified or waived without the consent of the
holder of each Junior Subordinated Debt Security affected thereby;
provided, that, in the case of the Junior Subordinated Debt Securities of a
series issued to a business trust, so long as any of the corresponding series
of preferred beneficial interests issued by such business trust remains
outstanding, (a) no such amendment shall be made that adversely affects the
holders of such preferred beneficial interests in any material respect, and
no termination of the Indenture shall occur, and no waiver of any Debenture
Event of Default or compliance with any covenant under the Indenture shall be
effective, without the prior consent of the holders of at least a majority of
the aggregate liquidation amount of such preferred beneficial interests then
outstanding unless and until the principal of (and premium, if any, on) the
Junior Subordinated Debt Securities of such series and all accrued and unpaid
interest (including any Additional Interest) thereon have been paid in full
and (b) no amendment shall be made to the provisions of the Indenture that
would impair the rights of the holders of preferred beneficial interests
issued by a business trust to institute a Direct Action without the prior
consent of the holders of each such preferred beneficial interest then
outstanding unless and until the principal of (and premium, if any, on) the
Junior Subordinated Debt Securities of such series and all accrued and
(subject to the provisions of the Indenture permitting the deferral of
interest) unpaid interest (including any Additional Interest) thereon have
been paid in full.
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A supplemental indenture that changes or eliminates any covenant or
other provision of the Indenture that has expressly been included solely for
the benefit of one or more particular series of Junior Subordinated Debt
Securities or any corresponding series of preferred beneficial interests of
a business trust that holds the Junior Subordinated Debt Securities of any
series, or that modifies the rights of the holders of Junior Subordinated
Debt Securities of such series or holders of such preferred beneficial
interests of such corresponding series with respect to such covenant or other
provision, shall be deemed not to affect the rights under the Indenture of
the holders of Junior Subordinated Debt Securities of any other series or
holders or preferred beneficial interests of the corresponding series.
Satisfaction and Discharge
The Indenture provides that when, among other things, all Junior
Subordinated Debt Securities not previously delivered to the Debenture
Trustee for cancellation (i) have become due and payable, (ii) will become
due and payable at their Stated Maturity within one year or (iii) are to be
called for redemption within one year under arrangements satisfactory to the
Debenture Trustee for the giving of notice of redemption thereof, and the
Company deposits or causes to be deposited with the Debenture Trustee funds,
in trust, for the purpose and in an amount in the currency or currencies in
which the Junior Subordinated Debt Securities are payable sufficient to pay
and discharge the entire indebtedness on the Junior Subordinated Debt
Securities not previously delivered to the Debenture Trustee for
cancellation, for the principal (and premium, if any) and interest (including
any Additional Interest) to the date of the deposit or to the stated maturity
or redemption date, as the case may be, then the Indenture will cease to be
of further effect (except as to the Company's obligations to pay all other
sums due pursuant to the Indenture and to provide the officers' certificates
and opinions of counsel described therein) and the Company will be deemed to
have satisfied and discharged the Indenture.
Responsibilities of the Debenture Trustee
The Debenture Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the
Trust Indenture Act. Subject to such provisions, the Debenture Trustee is
under no obligation to exercise any of the powers vested in it by the
Indenture at the request of any holder of Junior Subordinated Debentures,
unless offered reasonable indemnity by such holder against the costs,
expenses and liabilities which might be incurred thereby. The Debenture
Trustee is not required to expend or risk its own funds or otherwise incur
personal financial liability in the performance of its duties if the
Debenture Trustee reasonably believes that repayment or adequate indemnity is
not reasonably assured to it.
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Continued Ownership of Common Securities
The Company will covenant, as to the Junior Subordinated Debentures, (i)
to maintain directly or indirectly 100% ownership of the Common Securities
provided that certain successors are permitted pursuant to the Indenture to
succeed to the Company's ownership of the Common Securities, (ii) not to
voluntarily terminate, wind-up or liquidate the Issuer, except (a) in
connection with a distribution of Junior Subordinated Debentures to the
holders of the Trust Preferred Securities in exchange therefor upon
liquidation of the Issuer or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the Trust Agreement and (iii) to
use its reasonable efforts, consistent with the terms and provisions of the
Trust Agreement, to cause the Issuer to be classified as a grantor trust and
not as an association taxable as a corporation for United States federal
income tax purposes.
Governing Law
The Indenture and the Junior Subordinated Debt Securities will be
governed by and construed in accordance with the laws of the State of New
York.
Miscellaneous
The Company is required to file annually with the Debenture Trustee a
certificate as to whether or not the Company is in compliance with all of the
covenants and conditions applicable to it under the Indenture.
DESCRIPTION OF GUARANTEE
The Guarantee will be executed and delivered for the benefit of the
holders from time to time of the Trust Preferred Securities by the Company,
concurrently with the issuance of Trust Preferred Securities. The Guarantee
Trustee will act as indenture trustee under the Guarantee for the purposes of
compliance with the Trust Indenture Act. This summary of certain provisions
of the Guarantee, which summarizes the material terms thereof, does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, all of the provisions of the Guarantee, including the
definitions therein of certain terms, and the Trust Indenture Act, to each of
which reference is hereby made. The form of the Guarantee has been filed as
an exhibit to the Registration Statement of which this Prospectus forms a
part. The Guarantee Trustee will hold the Guarantee for the benefit of the
holders of the Trust Preferred Securities.
General
The Company will irrevocably agree to pay in full on a subordinated
basis, to the extent set forth herein, the Guarantee Payments (as defined
below) to the holders of the Trust Preferred Securities (without duplication
of amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of setoff or counterclaim that the Issuer
may have or assert other than the defense of payment. The following payments
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with respect to the Trust Preferred Securities, to the extent not paid by or
on behalf of the Issuer (the "Guarantee Payments"), will be subject to the
Guarantee: (i) any accumulated and unpaid Distributions required to be paid
on the Trust Preferred Securities, to the extent that the Issuer has funds on
hand available therefor at such time, (ii) the redemption price with respect
to any Trust Preferred Securities called for redemption, to the extent that
the Issuer has funds on hand available therefor at such time or (iii) upon a
voluntary or involuntary dissolution, winding-up or liquidation of the
Issuer, unless the Junior Subordinated Debentures are distributed to holders
of such Trust Preferred Securities in exchange therefor, the lesser of (a)
the Liquidation Distribution to the extent that the Issuer shall have funds
on hand available therefor at such time and (b) the amount of assets of the
Issuer remaining available for distribution to holders of Trust Preferred
Securities after satisfaction of liabilities to creditors of the Issuer as
required by applicable law.
The Company's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Company to the holders of the
applicable Trust Preferred Securities or by causing the Issuer to pay such
amounts to such holders.
The Company has, through the Guarantee, the Trust Agreement, the Junior
Subordinated Debentures and the Indenture, taken together, fully, irrevocably
and unconditionally guaranteed all of the Issuer's obligations under the
Trust Preferred Securities. No single document standing alone or operating
in conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
Issuer's obligations under the Trust Preferred Securities. See "Relationship
Among the Trust Preferred Securities, the Junior Subordinated Debentures and
the Guarantee."
Status of the Guarantee
The Guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all Senior
Indebtedness of the Company in the same manner as Junior Subordinated
Debentures.
The Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding
directly against the Company to enforce its rights under the Guarantee
without first instituting a legal proceeding against any other person or
entity). The Guarantee will be held for the benefit of the holders of the
Trust Preferred Securities. The Guarantee will not be discharged except by
payment of the Guarantee Payments in full to the extent not paid by the
Issuer or upon distribution to the holders of the Trust Preferred Securities
of the Junior Subordinated Debentures. The Guarantee places no limitation on
the amount of additional Senior Debt that may be incurred by the Company.
The Company expects from time to time to incur additional indebtedness
constituting Senior Debt.
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Amendments and Assignment
Except with respect to any changes which do not materially adversely
affect the rights of holders of the related Trust Preferred Securities (in
which case no vote will be required), the Guarantee may not be amended
without the prior approval (given in the manner set forth in the Trust
Agreement) of the holders of not less than more than 50% of the aggregate
Liquidation Amount of the outstanding Trust Preferred Securities. All
guarantees and agreements contained in the Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Company
and shall inure to the benefit of the holders of the Trust Preferred
Securities then outstanding.
Events of Default; Control of Remedies
An event of default under the Guarantee will occur upon the failure of
the Company to perform any of its payment obligations thereunder or to
perform any non-payment obligations if such non-payment default remains
unremedied for 30 days.
The holders of more than 50% of the aggregate Liquidation Amount of the
Trust Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect to the Guarantee or to direct the exercise of any trust
power conferred upon the Guarantee Trustee under the Guarantee. Any holder
of the Trust Preferred Securities may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against the Issuer, the Guarantee Trustee or
any other person.
Termination of the Guarantee
The Guarantee will terminate and be of no further force and effect upon
(i) full payment of the redemption price of the outstanding Trust Preferred
Securities, (ii) upon full payment of the amounts payable upon liquidation of
the Issuer or (iii) upon distribution of Junior Subordinated Debentures to
the holders of the Trust Preferred Securities in exchange therefor. The
Guarantee will continue to be effective or will be reinstated, as the case
may be, if at any time any holder of Trust Preferred Securities must restore
payment of any sums paid under the Trust Preferred Securities or the
Guarantee.
Responsibilities of the Guarantee Trustee
The Guarantee Trustee, other than during the occurrence and continuance
of a default by the Company in performance of the Guarantee, undertakes to
perform only such duties as are specifically set forth in the Guarantee and,
after default with respect to the Guarantee, must exercise the same degree of
care and skill as a prudent person would exercise or use in the conduct of
his or her own affairs. Subject to this provision, the Guarantee Trustee is
under no obligation to exercise any of the powers vested in it by the
Guarantee at the request of any holder of any Trust Preferred Securities
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unless it is offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred thereby; provided, however, that such
right to indemnity shall in no event relieve the Guarantee Trustee, upon the
occurrence of an event of default under the Guarantee, of its obligation to
exercise the rights and powers vested in it by the Guarantee Agreement.
Governing Law
The Guarantee will be governed by and construed in accordance with the
laws of the State of New York.
Miscellaneous
The Company, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants applicable to it under the
Guarantee.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES, THE JUNIOR SUBORDINATED
DEBENTURES AND THE GUARANTEE
Full and Unconditional Guarantee
Payments of Distributions and other amounts due on the Trust Preferred
Securities (to the extent the Issuer has funds available for the payment of
such Distributions) are pursuant to the Guarantee irrevocably guaranteed by
the Company as and to the extent set forth under "Description of Guarantee."
Taken together, the Company's obligations under the Junior Subordinated
Debentures, the Indenture, the Trust Agreement and the Guarantee provide, in
the aggregate, a full, irrevocable and unconditional guarantee of payments of
Distributions and other amounts due on the Trust Preferred Securities. No
single document standing alone or operating in conjunction with fewer than
all of the other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of providing a
full, irrevocable and unconditional guarantee of the Issuer's obligations
under the Trust Preferred Securities. If and to the extent that the Company
does not make payments on any series of Junior Subordinated Debentures, the
Issuer will not pay Distributions or other amounts due on the Trust Preferred
Securities. The Guarantee does not cover payment of Distributions when the
Issuer does not have sufficient funds to pay such Distributions. In such
event, the remedy of a holder of Trust Preferred Securities is to institute
a Direct Action against the Company. The obligations of the Company under
the Guarantee and the Junior Subordinated Debentures are subordinate and
junior in right of payment to all Senior Debt of the Company.
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Sufficiency of Payments
As long as payments of interest and other payments are made when due on
the Junior Subordinated Debentures, such payments will be sufficient to cover
Distributions and other payments due on the Trust Preferred Securities,
primarily because (i) the aggregate principal amount of the Junior
Subordinated Debentures will be equal to the sum of the aggregate stated
Liquidation Amount of the Trust Securities; (ii) the interest rate and
interest and other payment dates on the Junior Subordinated Debentures will
match the Distribution rate and Distribution and other payment dates for the
Trust Securities; (iii) the Company shall pay for all and any costs, expenses
and liabilities of the Issuer except the Issuer's obligations to holders of
the Trust Preferred Securities under the Trust Preferred Securities; and (iv)
the Trust Agreement provides that the Issuer will not engage in any activity
that is not consistent with the limited purposes of the Issuer.
Notwithstanding anything to the contrary in the Indenture, the Company
has the right to setoff any payment it is otherwise required to make
thereunder with and to the extent the Company has theretofore made, or is
concurrently on the date of such payment making, a payment under the
Guarantee.
Enforcement Rights of Holders of Trust Preferred Securities
A holder of any Trust Preferred Security may institute a legal
proceeding directly against the Company to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee, the Issuer or any other person or entity.
A default or event of default under any Senior Debt of the Company would
not constitute an Event of Default or Debenture Event of Default. However,
in the event of payment defaults under, or acceleration of, Senior Debt of
the Company, the subordination provisions of the Indenture provide that no
payments may be made in respect of the Junior Subordinated Debentures until
such Senior Debt has been paid in full or any payment default thereunder has
been cured or waived. Failure to make required payments on any series of
Junior Subordinated Debentures (absent a deferral of interest on the Junior
Subordinated Debentures as permitted under the Indenture) would constitute a
Debenture Event of Default.
Limited Purpose of Issuer
The Issuer exists for the sole purpose of issuing the Trust Preferred
Securities and Common Securities and investing the proceeds thereof in Junior
Subordinated Debentures. A principal difference between the rights of a
holder of a Trust Preferred Security and a holder of a Junior Subordinated
Debenture is that a holder of a Junior Subordinated Debenture is entitled to
receive from the Company the principal amount of and interest accrued on
Junior Subordinated Debentures held, while a holder of Trust Preferred
Securities is entitled to receive Distributions from the Issuer (or from the
Company under the Guarantee) if and to the extent such Issuer has funds
available for the payment of such Distributions.
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Rights Upon Dissolution
Upon any voluntary or involuntary dissolution, winding-up or liquidation
of the Issuer involving the liquidation of the Junior Subordinated
Debentures, after satisfaction of liabilities to creditors of the Issuer as
provided by applicable law, the holders of the Trust Preferred Securities
will be entitled to receive, out of the assets held by the Issuer, the
Liquidation Distribution in cash. See "Description of Trust Preferred
Securities -- Liquidation and Dissolution; Distribution Upon Dissolution."
Upon any voluntary or involuntary liquidation or bankruptcy of the Company,
the Property Trustee, as holder of the Junior Subordinated Debentures would
be an unsecured creditor of the Company subordinated in right of payment to
all Senior Debt as set forth in the Indenture, but entitled to receive
payment in full of principal and interest, before any stockholders of the
Company receive payments or distributions. Since the Company is the
guarantor under the Guarantee, the positions of a holder of such Trust
Preferred Securities and a holder of such Junior Subordinated Debentures
relative to other creditors and to stockholders of the Company in the event
of liquidation or bankruptcy of the Company are expected to be substantially
the same.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the principal United States federal income
tax consequences of the purchase, ownership and disposition of Trust
Preferred Securities. This summary only addresses the tax consequences to a
person that acquires Trust Preferred Securities on their original issue at
their original offering price and that is (i) an individual citizen or
resident of the United States, (ii) a corporation or partnership organized in
or under the laws of the United States or any state thereof or the District
of Columbia or (iii) an estate or trust the income of which is subject to
United States federal income tax regardless of source (a "United States
Person"). This summary does not address all tax consequences that may be
applicable to a United States Person that is a beneficial owner of Trust
Preferred Securities, nor does it address the tax consequences to (i) persons
that are not United States Persons, (ii) persons that may be subject to
special treatment under United States federal income tax law, such as banks,
insurance companies, thrift institutions, regulated investment companies,
real estate investment trusts, tax-exempt organizations and dealers in
securities or currencies, (iii) persons that will hold Trust Preferred
Securities as part of a position in a "straddle" or as part of a "hedging,"
"conversion" or other integrated investment transaction for federal income
tax purposes, (iv) persons whose functional currency is not the United States
dollar or (v) persons that do not hold Trust Preferred Securities as capital
assets.
The statements of law or legal conclusion set forth in this summary
constitute the opinion of the McNair Law Firm, P.A., special tax counsel to
the Company and the Issuer. This summary is based upon the Internal Revenue
Code of 1986, as amended (the "Code"), Treasury Regulations, Internal Revenue
Service ("IRS") rulings and pronouncements and judicial decisions now in
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effect, all of which are subject to change at any time. Such changes may be
applied retroactively in a manner that could cause the tax consequences to
vary substantially from the consequences described below, possibly adversely
affecting a beneficial owner of Trust Preferred Securities. The authorities
on which this summary is based are subject to various interpretations, and it
is therefore possible that the federal income tax treatment of the purchase,
ownership and disposition of Trust Preferred Securities may differ from the
treatment described below.
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS
IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE FEDERAL TAX
CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF TRUST PREFERRED
SECURITIES, AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
Classification of the Issuer
Under current law and assuming compliance with the terms of the Trust
Agreement, certain other documents and certain factual matters, the Issuer
will not be taxable as a corporation for United States federal income tax
purposes. As a result, each beneficial owner of Trust Preferred Securities
(a "Securityholder") will be required to include in its gross income its pro
rata share of the interest income, including original issue discount, paid or
accrued with respect to the Junior Subordinated Debentures whether or not
cash is actually distributed to the Securityholders. See "-- Interest Income
and Original Issue Discount." No amount included in income with respect to
the Trust Preferred Securities will be eligible for the dividends-received
deduction.
Interest Income and Original Issue Discount
Under Treasury regulations applicable to debt instruments issued on or
after August 13, 1996 (the "Regulations"), a contingency that stated interest
will not be timely paid that is "remote" because of the terms of the relevant
debt instrument will be ignored in determining whether such debt instrument
is issued with original issue discount ("OID"). As a result of terms and
conditions of the Junior Subordinated Debentures that prohibit certain
payments with respect to the Company's capital stock and indebtedness if the
Company elects to extend interest payment periods, the Company believes that
the likelihood of its exercising its option to defer payments is remote.
Based on the foregoing, the Company believes that the Junior Subordinated
Debentures will not be considered to be issued with OID at the time of their
original issuance and, accordingly, a Securityholder should include in gross
income such holder's allocable share of interest on the Junior Subordinated
Debentures, in accordance with such Securityholder's method of accounting.
The following discussion assumes that unless and until the Company exercises
its option to defer interest on the Junior Subordinated Debentures, the
Junior Subordinated Debentures will not be considered as issued with OID.
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<PAGE>
Under the Regulations, if the Company exercises its option to defer any
payment of interest, then the Junior Subordinated Debentures would at that
time be treated as issued with OID, and all stated interest on the Junior
Subordinated Debentures would thereafter be treated as OID as long as the
Junior Subordinated Debentures remained outstanding. In such event, all of
a Securityholder's taxable interest income with respect to the Junior
Subordinated Debentures would be accounted for as OID on an economic-accrual
basis regardless of such holder's method of tax accounting, and actual
distributions of stated interest would not be reported as taxable income.
Consequently, a Securityholder would be required to include in gross income
OID even though the Company would not make any actual cash payments during an
Extension Period.
The Regulations have not been addressed in any rulings or other
interpretations by the IRS, and it is possible that the IRS could take a
position contrary to the interpretation herein.
Because income on the Trust Preferred Securities will constitute
interest or OID, corporate Securityholders will not be entitled to a
dividends-received deduction with respect to any income recognized with
respect to the Trust Preferred Securities.
Distribution of Junior Subordinated Debentures to Holders of Trust Preferred
Securities
Under current law, a distribution by the Issuer of the Junior
Subordinated Debentures as described under the caption "Certain Terms of
Trust Preferred Securities -- Dissolution and Liquidation; Distribution Upon
Dissolution" will be non-taxable and will result in the Securityholder
receiving directly its pro rata share of the Junior Subordinated Debentures
previously held indirectly through the Issuer, with a holding period and
aggregate-tax basis equal to the holding period and aggregate-tax basis such
Securityholder had in its Trust Preferred Securities before such
distribution. If, however, the liquidation of the Issuer were to occur
because the Issuer is subject to United States federal income tax with
respect to income accrued or received on the Junior Subordinated Debentures,
then the distribution of Junior Subordinated Debentures to Securityholders by
the Issuer would be a taxable event to the Issuer and each Securityholder,
and each Securityholder would recognize gain or loss as if the Securityholder
had exchanged its Trust Preferred Securities for the Junior Subordinated
Debentures it received upon the liquidation of the Issuer. A Securityholder
will include interest in income in respect of Junior Subordinated Debentures
received from the Issuer in the manner described above under "-- Interest
Income and Original Issue Discount."
Sale or Redemption of Trust Preferred Securities
A Securityholder that sells (including a redemption for cash) Trust
Preferred Securities will recognize gain or loss equal to the difference
between its adjusted tax basis in the Trust Preferred Securities and the
amount realized on the sale of such Trust Preferred Securities. Assuming
that the Company does not exercise its option to defer payment of interest on
the Junior Subordinated Debentures, a Securityholder's adjusted tax basis in
63
<PAGE>
the Trust Preferred Securities generally will be its initial purchase price.
If the Junior Subordinated Debentures are deemed to be issued with OID, as a
result of the Company's deferral of interest payments, a Securityholder's
adjusted tax basis in the Trust Preferred Securities generally will be its
initial purchase price, increased by OID previously includable in such
Securityholder's gross income to the date of disposition and decreased by
Distributions or other payments received on the Trust Preferred Securities
since and including the date of the first Extension Period. Such gain or
loss generally will be a capital gain or loss, except to the extent any
amount realized is treated as a payment of accrued interest with respect to
such Securityholder's pro rata share of the Junior Subordinated Debentures
required to be included in income. Generally gain or losses from the
disposition of Trust Preferred Securities held for more than one year will be
a long-term capital gain or loss and gain from the disposition of such
securities held for more the 18 months may be subject to tax at the lower
adjusted net capital gains rate.
Should the Company exercise its option to defer any payment of interest
on the Junior Subordinated Debentures, the Trust Preferred Securities may
trade at a price that does not accurately reflect the value of accrued but
unpaid interest with respect to the underlying Junior Subordinated
Debentures. In the event of such a deferral, a Securityholder who disposes
of its Trust Preferred Securities between record dates for payments of
distributions thereon will be required to include in income as ordinary
income accrued but unpaid interest on the Junior Subordinated Debentures to
the date of disposition and to add such amount to its adjusted-tax basis in
its Trust Preferred Securities. To the extent the selling price is less than
the Securityholder's adjusted-tax basis, such holder will recognize a capital
loss. Subject to certain limited exceptions, capital losses cannot be
applied to offset ordinary income for United States federal income tax
purposes.
Backup Withholding Tax and Information Reporting
The amount of interest income paid and OID accrued on the Trust
Preferred Securities held of record by United States Persons (other than
corporations and other exempt Securityholders) will be reported to the IRS.
"Backup" withholding at a rate of 31% will apply to payments of interest to
nonexempt United States Persons unless the Securityholder furnishes its
taxpayer identification number in the manner prescribed in applicable
Treasury Regulations, certifies that such number is correct, certifies as to
no loss of exemption from backup withholding and meets certain other
conditions.
Payment of the proceeds from the disposition of Trust Preferred
Securities to or through the United States office of a broker is subject to
information reporting and backup withholding unless the holder or beneficial
owner establishes an exemption from information reporting and backup
withholding.
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<PAGE>
Any amounts withheld from a Securityholder under the backup withholding
rules will be allowed as a refund or a credit against such Securityholder's
United States federal income tax liability, provided the required information
is furnished to the IRS.
It is anticipated that income on the Trust Preferred Securities will be
reported to holders on Form 1099 and mailed to holders of the Trust Preferred
Securities by January 31 following each calendar year.
UNDERWRITING
Under the terms and subject to the conditions contained in an
Underwriting Agreement dated __________ ___, 1997 (the "Underwriting
Agreement"), the underwriters named below (the "Underwriters") have severally
but not jointly agreed to purchase from the Issuer, the following respective
numbers of the Trust Preferred Securities.
Underwriters Number of Securities
Credit Suisse First Boston Corporation
PaineWebber Incorporated
The Underwriting Agreement provides that the obligations of the
Underwriters are subject to certain conditions precedent and that the
Underwriters are committed to purchase all of the Trust Preferred Securities
offered hereby if any are taken.
The Issuer has been informed by the Underwriters that the Underwriters
propose to offer the Trust Preferred Securities to the public initially at
the public offering price set forth on the cover page of this Prospectus and
to certain dealers at such price less a concession of $_______ per Trust
Preferred Security, and the Underwriters and such dealers may allow a
discount of $_______ per Trust Preferred Securities on sales to certain other
dealers. After the initial public offering, the offering price and
concession and discount may be changed by the Underwriters.
In view of the fact that the proceeds from the sale of the Trust
Preferred Securities will be used to purchase the Junior Subordinated
Debentures issued by the Company, the Underwriting Agreement provides that
the Company will pay as Underwriters' compensation for the Underwriters
arranging the investment therein of such proceeds an amount of $_______ per
Trust Preferred Security for the account of the Underwriters.
The Underwriters may engage in over-allotment, stabilizing transactions,
syndicate covering transactions and penalty bids in accordance with
Regulation M under the Exchange Act. Over-allotment involves syndicate sales
in excess of the offering size, which creates a syndicate short position.
Stabilizing transactions permit bids to purchase the underlying security so
long as the stabilizing bids do not exceed a specified maximum. Syndicate
covering transactions involve purchases of the Trust Preferred Securities in
65
<PAGE>
the open market after the distribution has been completed in order to cover
syndicate short positions. Penalty bids permit the Underwriters to reclaim
a selling concession from a syndicate member when the Trust Preferred
Securities originally sold by such syndicate member are purchased in a
syndicate covering transaction to cover syndicate short positions. Such
stabilizing transactions, syndicate covering transactions and penalty bids
may cause the price of the Trust Preferred Securities to be higher than it
would otherwise be in the absence of such transactions. These transactions
may be effected on the NYSE or otherwise and, if commenced, may be
discontinued at any time.
The Trust Preferred Securities are a new issue of securities with no
established trading market. Application has been made to list the Trust
Preferred Securities on the NYSE. The Underwriters have advised the Company
that they intend to make a market in the Trust Preferred Securities, but are
not obligated to do so and may discontinue market making at any time without
notice. No assurance can be given as to the liquidity of the trading market
for the Trust Preferred Securities.
The Company and the Issuer have agreed to indemnify the Underwriters
against certain liabilities, including civil liabilities under the Securities
Act of 1933, as amended, or contribute to payments which the Underwriters may
be required to make in respect thereof.
The Underwriters or their affiliates have provided from time to time,
and expect to provide in the future, investment or commercial banking
services to the Company and its affiliates, for which the Underwriters or
their affiliates have received or will receive customary fees and
commissions.
VALIDITY
Certain legal matters in connection with this offering will be passed
upon for the Company by the McNair Law Firm, P.A., Columbia, South Carolina
and H. T. Arthur, Esquire, Columbia, South Carolina, who is General Counsel
and a full-time employee of SCANA Corporation, the parent company of the
Company, and for the Underwriters by Reid & Priest LLP, New York, New York.
Certain matters of Delaware law relating to the validity of the Trust
Preferred Securities, the enforceability of the Trust Agreement and the
creation of the Issuer will be passed upon by Richards, Layton & Finger,
Wilmington, Delaware, special Delaware counsel to the Company and the Issuer.
The McNair Law Firm, P.A., H. T. Arthur, Esquire and Reid & Priest LLP will
rely as to certain matters of Delaware law upon the opinion of Richards,
Layton & Finger, the McNair Law Firm, P.A. and H. T. Arthur, Esquire, will
rely on the opinion of Reid & Priest LLP as to all matters of New York law,
and Reid & Priest LLP will rely on the opinion of H. T. Arthur, Esquire, as
to all matters of South Carolina law. Certain matters relating to United
States federal income tax considerations will be passed upon for the Company
and the Issuer by the McNair Law Firm, P.A.
66
<PAGE>
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated herein by
reference, and has been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
67
<PAGE>
No dealer, salesperson or other
person has been authorized to give
any information or to make any
representation not contained in $50,000,000
this prospectus and, if given or
made, such information or represen- SCE&G TRUST I
tation must not be relied upon as
having been authorized by the %
Company, the Issuer or any under- Trust Preferred Securities, Series A
writer. This prospectus does not (Liquidation Amount $25
constitute an offer to sell or a per Trust Preferred Security)
solicitation of an offer to buy fully and unconditionally guaranteed
any of the securities offered hereby as described herein by
in any jurisdiction to any person
to whom it is unlawful to make such
offer in such jurisdiction. Neither SOUTH CAROLINA ELECTRIC &
the delivery of this prospectus nor GAS COMPANY
any sale made hereunder shall, under
any circumstances, create any impli-
cation that the information herein is
correct as of any time subsequent to
the date hereof or that there has been
no change in the affairs of the
Company or the Issuer since such date.
____________________
TABLE OF CONTENTS
Page PROSPECTUS
PROSPECTUS
Available Information........... 1
Incorporation of Certain
Documents by Reference........ 2
Prospectus Summary.............. 5
Risk Factors.................... 7
The Company..................... 10 Credit Suisse First Boston
The Issuer...................... 10
Selected Financial Data......... 12 PaineWebber Incorporated
Ratios of Earnings to Fixed
Charges....................... 12
Use of Proceeds................. 13
Accounting Treatment............ 13
Description of Trust Preferred
Securities.................... 13
Description of Junior
Subordinated Debentures....... 27
Description of Guarantee........ 39
Relationship Among the Trust
Preferred Securities, the
Junior Subordinated Debentures
and the Guarantee............. 42
Certain Federal Income Tax
Consequences.................. 43
Underwriting.................... 46
Validity........................ 48
Experts......................... 48
68
<PAGE> PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission filing fee. . $ 15,152
Printing registration statement, prospectus
exhibits and miscellaneous . . . . . . . . . . . 15,000#
Blue Sky and legal fees. . . . . . . . . . . . . 100,000#
Rating agency fees . . . . . . . . . . . . . . . 10,000#
Accounting services. . . . . . . . . . . . . . . 10,000#
Miscellaneous. . . . . . . . . . . . . . . . . . 10,848#
Total. . . . . . . . . . . . . . . . . . . . . . $161,000#
# Estimated
69
<PAGE>
Item 15. Indemnification of Directors and Officers
The South Carolina Business Corporation Act of 1988 permits, and the
Registrant's By-Laws require, indemnification of the Registrant's directors
and officers in a variety of circumstances, which may include indemnification
for liabilities under the Securities Act of 1933, as amended (the "Securities
Act"). Under sections 33-8-510, 33-8-550 and 33-8-560 of the South Carolina
Business Corporation Act of 1988, a South Carolina corporation is authorized
generally to indemnify its directors and officers in civil or criminal
actions if they acted in good faith and reasonably believed their conduct to
be in the best interests of the corporation and, in the case of criminal
actions, had no reasonable cause to believe that the conduct was unlawful.
The Registrant's By-Laws require indemnification of directors and officers
with respect to expenses actually and necessarily incurred by them in
connection with the defense or settlement of any action, suit or proceeding
in which they are made parties by reason of having been a director or
officer, except in relation to matters as to which they shall be adjudged to
be liable for willful misconduct in the performance of duty and to such
matters as shall be settled by agreement predicated on the existence of such
liability. In addition, the Registrant carries insurance on behalf of
directors, officers, employees or agents that may cover liabilities under the
Securities Act.
Item 16. Exhibits
Exhibits required to be filed with this Registration Statement are
listed in the following Exhibit Index. Certain of such exhibits which have
heretofore been filed with the Securities and Exchange Commission and which
are designated by reference to their exhibit numbers in prior filings are
hereby incorporated herein by reference and made a part hereof.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) that, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared effective.
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) to provide to the underwriter at the closing specified in the
underwriting agreements, certificates in such denominations and the
registered in such names as required by the underwriter to permit prompt
delivery to each purchaser.
70
<PAGE>
(4) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
71
<PAGE>
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 14, 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 14, 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 14, 1997
(ii) Principal accounting officer:
By: s/J. E. Addison
(Name & Title): J. E. Addison, Vice President and
Controller
Date: October 14, 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
72
<PAGE>
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 registration
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 14, 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 14, 1997
73
<PAGE>
SOUTH CAROLINA ELECTRIC & GAS COMPANY
EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Description of Exhibits Pages
1. Underwriting Agreement
Form of Underwriting Agreement . . . . . . . . . . . 76
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. . . . . . . . . . . . . . . . 104
B. Certificate of Trust of SCE&G Trust I. . . . . . 199
C. Trust Agreement of SCE&G Trust I . . . . . . . . 200
D. Form of Amended and Restated Trust Agreement of
SCE&G Trust I. . . . . . . . . . . . . . . . . . 203
E. Form of Trust Preferred Security Certificate
(included as Exhibit D of Exhibit 4(D)
F. Form of Guarantee Agreement. . . . . . . . . . . 278
5. Opinion re legality
A. Opinion of H. T. Arthur, Esq., as to legality of
Junior Subordinated Deferrable Interest
Debentures and Guarantee Agreement . . . . . . . 302
B. Opinion of Richards, Layton & Finger as to
legality of the Trust Preferred Securities to
be issued by SCE&G Trust I . . . . . . . . . . . 304
8. Opinion re Tax Matters
Opinion of McNair Law Firm, P.A. as to certain
federal income tax matters . . . . . . . . . . . . . 308
12. Statements re Computation of Ratios . . . . . . . . 309
15. Letter re Unaudited Interim Financial Information
Not Applicable
74
<PAGE>
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. . . . . . . . . . 310
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 . . . . . . . . . . . . . . . . . . . 311
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. . . . . . 312
26. Invitations for Competitive Bids
Not Applicable
27. Financial Data Schedule
Not Applicable
99. Additional Exhibits
Not Applicable
75
<PAGE>
$50,000,000
SCE&G TRUST I
___% Trust Preferred Securities, Series A
UNDERWRITING AGREEMENT
_______ __, 1997
Credit Suisse First Boston Corporation
and PaineWebber Incorporated
As Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Ladies and Gentlemen:
1. Introductory. SCE&G Trust I (the "Issuer"), a statutory
business trust created under the Business Trust Act (the "Delaware
Act") of the State of Delaware (Chapter 38, Title 12, of the
Delaware Code, 12 Del. C. Section 3801 et seq.), proposes, subject
to the terms and conditions stated herein, to issue and sell to the
several Underwriters ("Underwriters") ______ of its ___% Trust
Preferred Securities, Liquidation Amount $25 per Trust Preferred
Security (the "Trust Preferred Securities"). The Trust Preferred
Securities represent preferred undivided beneficial interests in
the assets of the Issuer.
The Trust Preferred Securities will be guaranteed by South
Carolina Electric & Gas Company (the "Corporation") to the extent
set forth in the Prospectus (as defined herein), with respect to
distributions and amounts payable upon liquidation or redemption
(the "Guarantee"), pursuant to the Guarantee Agreement (the
"Guarantee Agreement") to be dated as of the Closing Date (as
defined herein), executed and delivered by the Corporation and The
Bank of New York, as trustee (the "Guarantee Trustee") for the
benefit of the holders from time to time of the Trust Preferred
Securities. The proceeds from the sale of the Trust Preferred
Securities to the Underwriters will be aggregated with the entire
proceeds from the sale by the Issuer to the Corporation of the
common beneficial interests in the Issuer (the "Common Securities")
and will be used by the Issuer to purchase the ___% Junior
Subordinated Deferrable Interest Debentures (the "Debentures"),
issued by the Corporation. The Trust Preferred Securities and the
Common Securities will be issued pursuant to the Amended and
76
<PAGE>
Restated Trust Agreement of the Issuer, to be dated as of the
Closing Date (the "Trust Agreement"), among the Corporation, as
Depositor, and the trustees named therein (the "Trustees") and the
holders from time to time of the Trust Preferred Securities and the
Common Securities. The Debentures will be issued pursuant to a
Junior Subordinated Indenture, to be dated as of the Closing Date
(the "Indenture"), between the Corporation and The Bank of New
York, as trustee (the "Debenture Trustee"). The Trust Preferred
Securities, the Guarantee and the Debentures are collectively
referred to herein as the "Securities." This Agreement, the
Indenture, the Trust Agreement and the Guarantee Agreement are
referred to collectively as the "Operative Documents."
The Issuer and the Corporation, jointly and severally, hereby
agree with the Underwriters as follows:
2. Representations and Warranties. Each of the Issuer and
the Corporation, jointly and severally, represents and warrants to,
and agrees with, the Underwriters that:
(a) The Corporation and the Issuer have filed with the
Securities and Exchange Commission (the "Commission") a
registration statement, and may have filed an amendment or
amendments thereto, on Form S-3, for the registration of the
Securities under the Securities Act of 1933, as amended (the
"Act"), and such registration statement has become effective under
the Act. Such Registration Statement (including all documents
incorporated therein by reference) and including all information
deemed to be a part of such registration statement as of its
Effective Time pursuant to Rule 430A(b) under the Act is
hereinafter referred to as the "Registration Statement." Any post-
effective amendment to such registration statement has been filed
with the Commission prior to the execution and delivery of this
Agreement and the most recent such amendment has been declared
effective by the Commission. For purposes of this Agreement,
"Effective Time" of the Registration Statement means (i) the date
and time as of which such registration statement was declared
effective by the Commission or (ii) the date on which the most
recent post-effective amendment or amendments thereto, if any,
became or become effective. "Effective Date" means the date of the
Effective Time. "Prospectus" means the prospectus (including all
documents incorporated therein by reference) relating to the
Registration Statement, in the form in which such prospectus is
first filed with the Commission on or after the date hereof
pursuant to Rule 424(b) under the Act. Any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to refer
to and include the filing under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or after the date hereof
of any document deemed to be incorporated therein by reference.
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<PAGE>
(b) On the Effective Date, the Registration Statement
conformed in all material respects to the requirements of the Act,
the Trust Indenture Act of 1939, as amended ("Trust Indenture Act")
and the rules and regulations of the Commission under the Act
("Rules and Regulations"), and did not include any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, (ii) on the date of this Agreement, the Registration
Statement conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b), the Prospectus and any amendments and
supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations, and none of
such documents includes any untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii)
at any time when a Prospectus relating to the Securities is
required to be delivered under the Act, the Registration Statement,
the Prospectus and any amendments or supplements to the
Registration Statement or the Prospectus will not include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading. The preceding sentence does not
apply to statements in or omissions from the Registration Statement
or Prospectus based upon written information furnished to the
Corporation by any Underwriter specifically for use therein.
(c) The Corporation has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of South Carolina, with power and authority (corporate and other)
to own its properties and conduct its business as described in the
Prospectus; and the Corporation is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its
business requires such qualification.
(d) The Issuer has been duly formed and is validly
existing in good standing as a business trust under the Delaware
Act with the power and authority to own property and to conduct its
business as described in the Prospectus.
(e) All of the outstanding beneficial interests in the
Issuer have been duly authorized and validly issued and are fully
paid and nonassessable to the holders thereof; the holders of such
beneficial interests in the Issuer have no preemptive or other
rights to acquire Trust Preferred Securities or Common Securities;
and there are no restrictions on transfers of the Securities.
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(f) The Trust Agreement has been duly authorized; and
when the Trust Preferred Securities are delivered and paid for
pursuant to this Agreement on the Closing Date, the Trust Agreement
will have been duly executed and delivered and will constitute a
valid and legally binding instrument enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights of
creditors generally and to general equity principles.
(g) The Guarantee Agreement has been duly authorized;
and when the Trust Preferred Securities are delivered and paid for
pursuant to this Agreement on the Closing Date, the Guarantee
Agreement will have been duly executed and delivered and will
constitute a valid and legally binding instrument enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
rights of creditors generally and to general equity principles.
(h) The Trust Preferred Securities have been duly
authorized; when the Trust Preferred Securities are delivered and
paid for pursuant to this Agreement on the Closing Date, such Trust
Preferred Securities will (i) have been validly issued and fully
paid, (ii) represent nonassessable beneficial interests in the
Issuer, (iii) be entitled to the benefits of the Trust Agreement
and (iv) conform to the description thereof contained in the
Prospectus; the issuance of the Trust Preferred Securities is not
subject to preemptive or other similar rights; and the holders of
the Trust Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit incorporated under the General
Corporation Law of the State of Delaware.
(i) The Common Securities have been duly authorized;
when the Common Securities are delivered and paid for on the
Closing Date, such Common Securities will (i) have been validly
issued and fully paid, (ii) represent nonassessable beneficial
interests in the Issuer, (iii) be entitled to the benefits of the
Trust Agreement and (iv) conform to the description thereof
contained in the Prospectus; the issuance of the Common Securities
is not subject to preemptive or other similar rights; the holders
of the Common Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations
for profit incorporated under the General Corporation Law of the
State of Delaware; and at the Closing Date, all of the issued and
outstanding Common Securities of the Issuer will be directly owned
by the Corporation free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
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(j) The Indenture has been duly authorized; and when the
Debentures are delivered and paid for on the Closing Date, the
Indenture will have been duly executed and delivered, such
Debentures will have been duly executed, authenticated, issued and
delivered and will conform to the description thereof contained in
the Prospectus and the Indenture and such Debentures will
constitute valid and legally binding obligations of the
Corporation, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the rights of creditors generally and to
general equity principles.
(k) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
the Operative Documents in connection with the issuance and sale of
the Securities and the Common Securities by the Corporation and the
Issuer, except such as have been obtained under the Act, the Trust
Indenture Act or the Rules and Regulations, such as may be required
under state securities or Blue Sky laws or the by-laws and rules of
the National Association of Securities Dealers, Inc. (the "NASD")
in connection with the purchase and distribution by the
Underwriters of the Securities and such authorization as may be
required from the Public Service Commission of the State of South
Carolina (the "PSC"), which has been obtained and is in full force
and effect.
(l) The execution, delivery and performance of the
Operative Documents, and the issuance and sale of the Securities
and the Common Securities and compliance with the terms and
provisions thereof will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over
the Corporation or the Issuer or any of their properties, or any
agreement or instrument to which the Corporation or the Issuer is
a party or by which the Corporation or the Issuer is bound or to
which any of the properties of the Corporation or the Issuer is
subject, or the charter or by-laws of the Corporation or any such
subsidiary or the Trust Agreement, and each of the Corporation and
the Issuer have full power and authority to authorize, issue and
sell the Securities and the Common Securities as contemplated by
the Operative Documents.
(m) This Agreement has been duly authorized, executed
and delivered by each of the Corporation and the Issuer.
(n) Except as disclosed in the Prospectus, the
Corporation has good and marketable title to all real properties
and all other properties and assets owned by it, in each case free
from liens, encumbrances and defects that would materially affect
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the value thereof or materially interfere with the use made or to
be made thereof by it; and except as disclosed in the Prospectus,
the Corporation hold any leased real or personal property under
valid and enforceable leases with such exceptions that would
materially interfere with the use made or to be made thereof by it.
(o) The Corporation possesses adequate certificates,
authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by it and
has not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Corporation, would
individually or in the aggregate have a material adverse effect on
the Corporation.
(p) No labor dispute with the employees of the
Corporation exists or, to the knowledge of the Corporation, is
imminent that might have a material adverse effect on the
Corporation.
(q) The Corporation owns, possesses or can acquire on
reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business
now operated by it, or presently employed by it, and has not
received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights
that, if determined adversely to the Corporation would individually
or in the aggregate have a material adverse effect on the
Corporation.
(r) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute,
any rule, regulation, decision or order of any governmental agency
or body or any court, domestic or foreign, relating to the use,
disposal or release of hazardous or toxic substances or relating to
the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable for
any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a
whole; and the Company is not aware of any pending investigation
which might lead to such a claim.
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(s) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Corporation or any of its properties that, if determined adversely
to the Corporation, would individually or in the aggregate have a
material adverse effect on the condition (financial or other),
business, properties or results of operations of the Corporation,
or would materially and adversely affect the ability of the
Corporation or the Issuer to perform its obligations under the
Operative Documents, or which are otherwise material in the context
of the sale of the Securities; and no such actions, suits or
proceedings are threatened or, to the Corporation's knowledge,
contemplated.
(t) The financial statements included or incorporated by
reference in the Prospectus present fairly the financial position
of the Corporation and its consolidated affiliate as of the dates
shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis, except as otherwise
disclosed in the Registration Statement.
(u) Except as disclosed in or contemplated by in the
Prospectus, since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Corporation.
(v) Neither the Issuer nor the Corporation is and, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Prospectus,
neither of them will be, an "investment company" or a company
"controlled" by an investment company as defined in the United
States Investment Company Act of 1940 (the "Investment Company
Act").
3. Purchase, Sale and Delivery of Securities. On the basis
of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the
Issuer agrees to sell to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Issuer, at
a purchase price of U.S. $25 per Trust Preferred Security plus
accumulated distributions, if any, from _____________ ____, 1997
to the Closing Date, the respective liquidation amounts of
Securities set forth opposite the names of the Underwriters in
Schedule A hereto.
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The Corporation will deliver against payment of the purchase
price the Trust Preferred Securities in the form of one or more
permanent global securities in definitive form (the "Global
Securities") deposited with the Property Trustee as custodian for
The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global
Securities will be held only in book-entry form through DTC, except
in the limited circumstances described in the Prospectus. Payment
for the Trust Preferred Securities shall be made by the
Underwriters in Federal (same day) funds by official check or
checks or wire transfer to an account previously designated to
Credit Suisse First Boston Corporation ("CSFBC") by the Corporation
at a bank acceptable to CSFBC drawn to the order of the Issuer at
the office of Reid & Priest LLP, 40 West 57th Street, New York, New
York 10019, at 10:00 A.M. (New York time), on _______ __, 1997 or
at such other time not later than seven full business days
thereafter as CSFBC and the Corporation determine, such time being
herein referred to as the "Closing Date," against delivery to the
Property Trustee as custodian for DTC of the Global Securities
representing all of the Trust Preferred Securities. The Global
Securities will be made available for checking at the above office
at least 24 hours prior to the Closing Date.
As compensation for the Underwriters' commitment and in view
of the fact that the proceeds of the sale of the Trust Preferred
Securities and the Common Securities will be used to purchase the
Debentures, the Corporation will pay, on the Closing Date, to each
Underwriter a commission of $__.00 per Trust Preferred Security
purchased by such Underwriter on the Closing Date by wire transfer
of immediately available funds to bank accounts designated by
CSFBC.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to
the public as set forth in the Prospectus.
5. Certain Agreements of the Corporation and the Issuer.
Each of the Corporation and the Issuer, jointly and severally,
agrees with the Underwriters that:
(a) The Corporation will file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b)(1) (or,
if applicable and if consented to by you, subparagraph (5)(4))
within the time periods prescribed. The Corporation will advise you
promptly of any such filing pursuant to Rule 424(b).
(b) The Corporation will advise you promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect such amendment or supplementation
without your consent; and the Corporation will also advise you
promptly of the filing and effectiveness of any amendment or
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supplementation of the Registration Statement or the Prospectus and
of the institution by the Commission of any stop order proceedings
in respect of the Registration Statement and will use its best
efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act, the Corporation promptly
will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither your consent
to, nor your delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Corporation will make
generally available to its security holders an earnings statement
covering a period of at least 12 months beginning after the
Effective Date which will satisfy the provisions of Section 11(a)
of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes the
Closing Date, except that, if such fourth fiscal quarter is the
last quarter of the Corporation's fiscal year, "Availability Date"
means the 90th day after the end of such fourth fiscal quarter.
(e) The Corporation will furnish to each of the
Underwriters copies of the Registration Statement (which will be
signed and will include all exhibits), each related preliminary
prospectus, the Prospectus and all amendments and supplements to
such documents, in each case in such quantities as CSFBC requests.
(f) The Corporation will arrange for the qualification
of the Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as
CSFBC designates and will continue such qualifications in effect so
long as required for the distribution.
(g) During the period of five years hereafter, the
Corporation will furnish to CSFBC, as soon as practicable after the
end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Corporation will furnish to
CSFBC (i) as soon as available, a copy of each report and any
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definitive proxy statement of the Corporation filed with the
Commission under the Exchange Act or mailed to stockholders, and
(ii) from time to time, such other information concerning the
Corporation as CSFBC may reasonably request.
(h) The Corporation will pay all expenses incident to
the performance of its obligations under this Agreement and will
reimburse the Underwriters for any expenses (including fees and
disbursements of counsel) incurred by them in connection with
qualification of the Securities for sale and determination of their
eligibility for investment under the laws of such jurisdictions as
CSFBC designates and the printing of memoranda relating thereto,
for any fees charged by investment rating agencies for the rating
of the Securities, for the filing fee incident to, and the fees and
disbursements of counsel to the Underwriters in connection with,
the review by the NASD of the Securities, for any travel expenses
of the Corporation's officers and employees and any other expenses
of the Corporation in connection with attending or hosting meetings
with prospective purchasers of the Securities and for expenses
incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to
the Underwriters.
6. Conditions of the Obligation of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Trust
Preferred Securities will be subject to the accuracy of the
representations and warranties on the part of the Corporation and
the Issuer herein, to the accuracy of the statements of officers of
the Corporation and the Issuer made pursuant to the provisions
hereof, to the performance by the Corporation and the Issuer of
their respective obligations hereunder and to the following
additional conditions precedent:
(a) CSFBC shall have received a letter, dated the date
thereof, of Deloitte & Touche LLP confirming that they are
independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder and
stating to the effect that:
(i) In their opinion the financial statements examined
by them and included in the Registration Statements comply as
to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Registration Statements;
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(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim
financial statements of the Corporation, inquiries of
officials of the Corporation who have responsibility for
financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements included in
the Registration Statements do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act, the Exchange Act and
the related published Rules and Regulations or any
material modifications should be made to such unaudited
financial statements for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than three business days prior to
the date of this Agreement, there was any decrease in the
capital stock or any increase in long-term debt of the
Corporation and its consolidated affiliates or, at the
date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated total
assets, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(C) for the period from the date of the latest
income statement included in the Prospectus to the
closing date of the latest available income statement
read by such accountants and to a subsequent specified
date not more than three business days prior to the date
of this Agreement there were any decreases, as compared
with the corresponding periods of the previous year, in
consolidated revenues or consolidated net income;
except in all cases set forth in clauses (B) and (C)
above for changes, increases or decreases which the
Prospectus disclose have occurred or may occur or which
are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
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percentages and other financial information are derived from
the general accounting records of the Corporation and its
affiliates subject to the internal controls of the
Corporation's accounting system or are derived directly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have
found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
For purposes of this subsection all financial statements and
schedules included in material incorporated by reference into the
Prospectus shall be deemed included in the Registration Statement
for purposes of this subsection.
(b) Prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Corporation or CSFBC, shall
be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the
condition (financial or other), business, properties or results of
operations of the Corporation which, in the judgment of a majority
in interest of the Underwriters, is material and adverse and makes
it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Securities; (ii)
any downgrading in the rating of any debt securities of the
Corporation by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of
the Corporation (other than an announcement with positive
implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on The New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the
Corporation on any exchange or in the over-the-counter market; (iv)
any banking moratorium declared by United States federal, South
Carolina or New York authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Securities.
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(d) CSFBC shall have received an opinion, dated the
Closing Date, of H. T. Arthur, Esquire, General Counsel to the
Corporation, in form and substance reasonably satisfactory to
counsel to the Underwriters, to the effect that:
(i) The Corporation is validly existing as a corporation
under the laws of South Carolina, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus; and the Corporation is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification;
(ii) The Indenture has been duly authorized, executed
and delivered by the Corporation; the Debentures have been
duly authorized, executed, authenticated, issued and delivered
by the Corporation and conform to the description thereof
contained in the Prospectus; and the Indenture, assuming due
execution and delivery thereof by the Debenture Trustee, and
the Debentures constitute valid and legally binding
obligations of the Corporation enforceable in accordance with
their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights
of creditors generally and to general equity principles;
(iii) Each of the Trust Agreement and the Guarantee
Agreement has been duly authorized, executed and delivered by
the Corporation and constitutes a valid and legally binding
obligation of the Corporation enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights
of creditors generally and to general equity principles.
(iv) Neither the Corporation nor the Issuer is, and
after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in
the Prospectus will be, an "investment company" or a company
"controlled" by an investment company as defined in the
Investment Company Act.
(v) An order has been or orders have been entered by the
Public Service Commission of South Carolina permitting the
issuance and sale of the Securities as contemplated by this
Agreement, and no further consent, approval, authorization or
order of, or filing with, any governmental agency or body or
any court is required for the consummation of the transactions
contemplated by the Operative Documents in connection with the
issuance or sale of the Securities by the Corporation and the
Issuer, except such as may be required under state securities
or Blue Sky laws;
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(vi) The execution, delivery and performance of
Operative Documents and the issuance and sale of the
Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the
Corporation or any of its properties, or any agreement or
instrument known to such counsel to which the Corporation is
a party or by which the Corporation is bound or to which any
of the properties of the Corporation is subject, or the
charter or by-laws of the Corporation and the Corporation, and
the Issuer has full power and authority to authorize, issue
and sell the Securities as contemplated by this Agreement;
(vii) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act;
(viii) The Registration Statement, as of its effective
date, and the Prospectus, and any amendment or supplement
thereto as of its date, appeared on their face to be
appropriately responsive to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations; the
Exchange Act filings incorporated by reference or deemed to be
incorporated by reference in the Prospectus complied as to
form when filed in all material respects with the requirements
of the Exchange Act and the applicable rules and regulations
of the Commission thereunder; it being understood in all
events that such counsel need express no opinion as to the
financial statements or other financial or statistical data
contained or incorporated by reference in the Registration
Statement or the Prospectus, as to any information relating to
the book-entry system of payments and transfers of the
Securities provided by The Depository Trust Company or as to
the trustees' Statements of Eligibility on Form T-1 included
in the Registration Statement;
(ix) Based upon such counsel's participation in
conferences with representatives of the Corporation and its
accountants and participation in prior financing of the
Corporation, such counsel has no reason to believe that the
Registration Statement, as of its effective date, or the
Prospectus, or any amendment or supplement thereto, as of its
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date or as of the Closing Date, contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and the descriptions in the
Registration Statement and Prospectus, and any amendment or
supplement thereto, of statutes, legal and governmental
proceedings and contracts and other documents are accurate and
fairly present the information required to be shown; it being
understood in all events that such counsel need express no
opinion as to the financial statements or other financial or
statistical data contained in the Registration Statement or
the Prospectus, as to any information relating to the book-
entry system of payments and transfers of the Securities
provided by The Depository Trust Company or as to the
trustees' Statements of Eligibility on Form T-1 included in
the Registration Statement;
(x) This Agreement has been duly authorized, executed
and delivered by the Corporation and the Issuer and
constitutes a valid and legally binding obligation of the
Corporation and the Issuer;
(xi) To such counsel's knowledge, there are no pending
actions, suits or proceedings against or affecting the
Corporation or any of its properties that, if determined
adversely to the Corporation, would individually or in the
aggregate have a material adverse effect on the condition
(financial or other), business, properties or results of
operations of the Corporation, or would materially and
adversely affect the ability of the Corporation or the Issuer
to perform their respective obligations under the Operative
Documents, or which are otherwise material in the context of
the sale of the Securities; and no such actions, suits or
proceedings are threatened or, to such counsel's knowledge,
contemplated; and
(xii) The Trust Preferred Securities have been duly
authorized for listing by The New York Stock Exchange, subject
to official notice of issuance.
Such counsel's opinion may be limited to the laws of
South Carolina and Delaware and the federal laws of the United
States; provided that in rendering such opinion counsel may
rely, as to matters of Delaware law, on the opinion of
Richards, Layton & Finger or other counsel licensed in
Delaware reasonably acceptable to CSFBC and, as to matters of
New York law, on the opinion of Reid & Priest LLP.
(e) CSFBC shall have received an opinion, dated the
Closing Date, of McNair Law Firm, P.A., counsel for the
Corporation, in form and substance reasonably satisfactory to
counsel to the Underwriters, to the effect that:
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(i) The Corporation is validly existing as a corporation
under the laws of South Carolina, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The Indenture has been duly authorized, executed
and delivered by the Corporation; the Debentures have been
duly authorized, executed, authenticated, issued and delivered
by the Corporation and conform to the description thereof
contained in the Prospectus; and the Indenture, assuming due
execution and delivery thereof by the Debenture Trustee, and
the Debentures constitute valid and legally binding
obligations of the Corporation enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights
of creditors generally and to general equity principles;
(iii) Each of the Trust Agreement and the Guarantee
Agreement has been duly authorized, executed and delivered by
the Corporation and constitutes a valid and legally binding
obligation of the Corporation enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights
of creditors generally and to general equity principles.
(iv) Neither the Corporation nor the Issuer is, and
after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in
the Prospectus will be, an "investment company" or a company
"controlled" by an investment company as defined in the
Investment Company Act.
(v) The Issuer has full corporate power and authority to
authorize, issue and sell the Securities as contemplated by
this Agreement;
(vi) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act;
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<PAGE>
(vii) The Registration Statement, as of its effective
date, and the Prospectus, and any amendment or supplement
thereto as of its date, appeared on their face to be
appropriately responsive to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations; the
Exchange Act filings incorporated by reference or deemed to be
incorporated by reference in the Prospectus complied as to
form when filed in all material respects with the requirements
of the Exchange Act and the applicable rules and regulations
of the Commission thereunder; it being understood in all
events that such counsel need express no opinion as to the
financial statements or other financial or statistical data
contained or incorporated by reference in the Registration
Statement or the Prospectus, as to any information relating to
the book-entry system of payments and transfers of the
Securities provided by The Depository Trust Company or as to
the trustees' Statements of Eligibility on Form T-1 included
in the Registration Statement;
(viii) Based upon such counsel's participation in
conferences with representatives of the Corporation and its
accountants and participation in prior financing of the
Corporation, such counsel has no reason to believe that the
Registration Statement, as of its effective date, or the
Prospectus, or any amendment or supplement thereto, as of its
date or as of the Closing Date, contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and the descriptions in the
Registration Statement and Prospectus, and any amendment or
supplement thereto, of statutes, legal and governmental
proceedings and contracts and does other documents are
accurate and fairly present the information required to be
shown; it being understood in all events that such counsel
need express no opinion as to the financial statements or
other financial or statistical data contained in the
Registration Statement or the Prospectus, as to any
information relating to the book-entry system of payments and
transfers of the Securities provided by The Depository Trust
Company or as to the trustees' Statements of Eligibility on
Form T-1 included in the Registration Statement;
(ix) This Agreement has been duly authorized, executed
and delivered by the Corporation and the Issuer; and
(x) The Trust Preferred Securities have been duly
authorized for listing by The New York Stock Exchange, subject
to official notice of issuance.
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Such counsel's opinion may be limited to the laws of
South Carolina and Delaware and the federal laws of the United
States; provided that in rendering such opinion counsel may
rely, as to matters of Delaware law, on the opinion of
Richards, Layton & Finger or other counsel licensed in
Delaware reasonably acceptable to CSFBC and, as to matters of
New York law, on the opinion of Reid & Priest LLP.
(f) CSFBC shall have received an opinion, dated the
Closing Date, of [ ], counsel to the Delaware Trustee,
in form and substance reasonably satisfactory to counsel to the
Underwriters, to the effect that:
(g) The Bank of New York (Delaware), a Delaware banking
corporation, has been duly incorporated and is validly existing in
good standing as a corporation under the laws of the State of
Delaware and has the corporate power to act as Trustee of a
Delaware business trust under the laws of the State of Delaware, 12
Del.C. Section 3801 et seq.
(h) CSFBC shall have received an opinion, dated the
Closing Date, of [ ], counsel to The Bank of
New York, in form and substance reasonably satisfactory to counsel
to the Underwriters, to the effect that:
(i) The Bank of New York is a corporation duly
incorporated and validly existing under the laws of the State
of New York;
(ii) The execution, delivery and performance by The Bank
of New York, as Property Trustee of the Issuer, of the Trust
Agreement, the execution, delivery and performance by The Bank
of New York, as Guarantee Trustee, of the Guarantee Agreement
and the Additional Guarantee Agreement and the execution,
delivery and performance by The Bank of New York, as the
Debenture Trustee, of the Indenture have been duly authorized
by all necessary corporate action on the part of the Property
Trustee and the Guarantee Trustee and the Debenture Trustee,
respectively. The Trust Agreement, the Guarantee Agreement
and the Indenture have been duly executed and delivered by the
Property Trustee and the Guarantee Trustee and constitute the
legal, valid and binding obligations of the Property Trustee
and the Guarantee Trustee and the Debenture Trustee,
respectively, enforceable against the Property Trustee, the
Guarantee Trustee and the Debenture Trustee, respectively, in
accordance with their terms, except as enforcement thereof may
be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, receivership or
similar laws relating to the enforcement of creditors' rights
generally, and by general principles of equity;
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(iii) The execution, delivery and performance of the
Trust Agreement, the Guarantee Agreement and the Indenture by
the Property Trustee, the Guarantee Trustee and the Debenture
Trustee, respectively, do not conflict with or constitute a
breach of the applicable organizational documents or by-laws
of the Property Trustee, the Guarantee Trustee or the
Debenture Trustee, respectively, or the terms of any indenture
or other agreement or instrument known to such counsel and to
which the Property Trustee, the Guarantee Trustee or the
Debenture Trustee, respectively, is a party or is bound or any
judgment, order or decree known to such counsel to be
applicable to the Property Trustee, the Guarantee Trustee or
the Debenture Trustee, respectively, of any court, regulatory
body, administrative agency, governmental body or arbitrator
having jurisdiction over the Property Trustee, the Guarantee
Trustee or the Debenture Trustee, respectively; and
(iv) No consent, approval or authorization of, or
registration with or notice to, any federal or state banking
authority is required for the execution, delivery or
performance by the Property Trustee, the Guarantee Trustee or
the Debenture Trustee of the Trust Agreement, the Guarantee
Agreement or the Indenture, respectively.
(i) CSFBC shall have received an opinion, dated the
Closing Date, of McNair Law Firm, P.A., special United States tax
counsel to the Corporation and the Issuer, in form and substance
reasonably satisfactory to counsel for the Underwriters, to the
effect that subject to the qualifications set forth therein, the
statements made in the Prospectus under the caption "Certain United
States Federal Income Tax Consequences" fairly present in all
material respects the principal United States federal income tax
consequences of an investment in the Trust Preferred Securities.
(j) CSFBC shall have received an opinion, dated the
Closing Date, of Richards, Layton & Finger, special Delaware
counsel to the Corporation and special counsel to the Issuer, in
form and substance reasonably satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Issuer has been duly created and is validly
existing in good standing as a business trust under the
Delaware Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid
existence of the Issuer as a business trust have been made;
(ii) Under the Delaware Act and the Trust Agreement, the
Issuer has the trust power and authority to own its property
and conduct its business, all as described in the Prospectus;
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(iii) The Trust Agreement constitutes a valid and
binding obligation of the Corporation and the Trustees, and is
enforceable against the Corporation and the Trustees in
accordance with its terms, subject, as to enforcement, to the
effect upon the Trust Agreement of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation,
fraudulent transfer and other similar laws relating to the
rights and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable
public policy on the enforceability of provisions relating to
indemnification or contribution;
(iv) Under the Delaware Act and the Trust Agreement, the
Issuer has the trust power and authority (i) to execute and
deliver, and to perform its obligations under, this Agreement
and (ii) to issue and perform its obligations under the Trust
Preferred Securities and the Common Securities;
(v) Under the Delaware Act and the Trust Agreement, the
execution and delivery by the Issuer of this Agreement, and
the performance by the Issuer of its obligations hereunder,
have been duly authorized by all necessary trust action on the
part of the Issuer;
(vi) The Trust Preferred Securities have been duly
authorized by the Trust Agreement and are duly and validly
issued and, subject to the qualifications set forth herein,
fully paid and nonassessable undivided beneficial interests in
the assets of the Issuer and are entitled to the benefits of
the Trust Agreement. The holders of the Trust Preferred
Securities, as beneficial owners of the Issuer, will be
entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
Such counsel may note that the holders of Trust Preferred
Securities may be obligated, pursuant to the Trust Agreement,
(i) to provide indemnity and/or security in connection with
and pay taxes or governmental charges arising from transfers
or exchanges of certificates for Trust Preferred Securities
and the issuance of replacement certificates for Trust
Preferred Securities and (ii) to provide security or indemnity
in connection with requests of or directions to the Property
Trustee to exercise its rights and powers under the Trust
Agreement;
(vii) Under the Delaware Act and the Trust Agreement,
the issuance of the Trust Preferred Securities is not subject
to preemptive rights;
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<PAGE>
(viii) The issuance and sale by the Issuer of the Trust
Preferred Securities, the execution, delivery and performance
by the Issuer of this Agreement, the consummation by the
Issuer of the transactions contemplated hereby and compliance
by the Issuer with its obligations hereunder, and the
performance by the Corporation, as sponsor, of its obligations
under the Trust Agreement (A) do not violate (i) any of the
provisions of the certificate of trust of the Issuer or the
Trust Agreement or (ii) any applicable Delaware law or
administrative regulation (except that such counsel need
express no opinion with respect to the securities laws of the
State of Delaware) and (B) do not require any consent,
approval, license, authorization or validation of, or filing
or registration with, any Delaware legislative, administrative
or regulatory body under the laws or administrative
regulations of the State of Delaware (except that such counsel
need express no opinion with respect to the securities laws of
the State of Delaware); and
(ix) Assuming that the Issuer derives no income from or
in connection with sources within the State of Delaware and
has no assets, activities (other than maintaining the Delaware
Trustee and the filing of documents with the Secretary of
State of the State of Delaware) or employees in the State of
Delaware, the holders of the Trust Preferred Securities (other
than those holders of Trust Preferred Securities who reside or
are domiciled in the State of Delaware) will have no liability
for income taxes imposed by the State of Delaware solely as a
result of their participation in the Issuer, and the Issuer
will not be liable for any income tax imposed by the State of
Delaware.
(k) CSFBC shall have received from Reid & Priest LLP,
counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Corporation,
the validity of the Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters
as the Underwriters may require, and the Corporation shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(l) Each Underwriter shall have received a certificate,
dated the Closing Date, of the Chairman and the Chief Executive
Officer or the President and a principal financial or accounting
officer of the Corporation in which such officers, to the best of
their knowledge after reasonable investigation, shall state that
the representations and warranties of the Corporation and the
Issuer in this Agreement are true and correct, that each of the
Corporation and the Issuer has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to
96
<PAGE>
the date of the most recent financial statements included in or
incorporated by reference in the Prospectus there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the
Corporation except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(m) CSFBC shall have received a letter, dated the
Closing Date, of Deloitte & Touche LLP which meets the requirements
of subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three
business days prior to the Closing Date for the purposes of this
subsection.
(n) CSFBC shall have received evidence reasonably
acceptable to it that the Trust Preferred Securities have been
authorized for listing by The New York Stock Exchange, subject to
official notice of issuance.
The Corporation will furnish the Underwriter with such conformed
copies of such opinions, certificates, letters and documents as the
Underwriters reasonably request.
7. Indemnification and Contribution. (a) Each of the
Corporation and the Issuer will, jointly and severally, indemnify
and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter
may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither the Corporation nor the
Issuer will be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Corporation by
any Underwriter specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter consists of the information described as such in
subsection (b) below.
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<PAGE>
(b) Each Underwriter will severally and not jointly
indemnify and hold harmless each of the Corporation and the Issuer
against any losses, claims, damages or liabilities to which any of
them may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished
to the Corporation by such Underwriter specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by any of them in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred, it being understood and agreed that the only
such information furnished by any Underwriter consists of the
following information in the Prospectus furnished on behalf of each
Underwriter: the last paragraph at the bottom of the cover page
concerning the terms of the offering by the Underwriters, the
legend concerning over-allotment and stabilizing on the inside
front cover page, the concession and reallowance figures appearing
in the third paragraph under the caption "Underwriting" and the
information in the fifth paragraph under the caption "Underwriting"
in the Prospectus.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof, but the
omission to so notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior
98
<PAGE>
written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Corporation and the Issuer on the one hand and the
Underwriters on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Corporation and the Issuer
on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the
Corporation and the Issuer on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received
by the Corporation bear to the total underwriting discounts and
commissions received by the Underwriters from the Corporation under
this Agreement. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the
Corporation, the Issuer or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
connection with any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
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<PAGE>
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Corporation and the Issuer
under this Section shall be in addition to any liability which they
may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any
liability which the respective Underwriter may otherwise have and
shall extend, upon the same terms and conditions, to each director
of the Corporation, to each officer of the Corporation who has
signed a Registration Statement and to each person, if any, who
controls the Corporation or the Issuer within the meaning of the
Act.
8. Default of Underwriter. If either Underwriter defaults in
its obligations to purchase Securities hereunder and arrangements
satisfactory to the other Underwriter and the Corporation for the
purchase of such Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without
liability on the part of the nondefaulting Underwriter, the
Corporation or the Issuer, except as provided in Section 9. As used
in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its
default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and
other statements of the Corporation or the Issuer or their
respective officers and of the several Underwriters set forth in or
made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the
Corporation, the Issuer or any of their respective representatives,
officers or directors or any controlling person, and will survive
delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 8 or for any reason the purchase of
the Securities by the Underwriters is not consummated, the
Corporation shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective
obligations of the Corporation, the Issuer and the Underwriters
pursuant to Section 7 shall remain in effect. If the purchase of
the Securities by the Underwriters is not consummated for any
reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event
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specified in clause (iii), (iv) or (v) of Section 6(c), the
Corporation will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) incurred by
them in connection with the offering of the Securities.
10. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to them at their addresses furnished to
the Corporation in writing for the purpose of communications
hereunder or, if sent to the Corporation, will be mailed, delivered
or telegraphed and confirmed to it at 1426 Main Street, Columbia,
South Carolina 29201, Attention: Chief Financial Officer.
11. Representation of Underwriters. Any action under this
Agreement taken by you jointly or by CSFBC will be binding upon
both of the Underwriters.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective
successors and the controlling persons referred to in Section 7,
and no other person will have any right or obligation hereunder.
13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one
and the same Agreement.
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14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Corporation one of the
counterparts hereof, whereupon it will become a binding agreement
among the Corporation, the Issuer and the several Underwriters in
accordance with its terms.
Very truly yours,
SOUTH CAROLINA ELECTRIC & GAS COMPANY
By:
-------------------------------------
[Insert title]
SCE&G TRUST I
By:
-------------------------------------
[Insert title]
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
AND PAINEWEBBER INCORPORATED, AS UNDERWRITERS
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:____________________________________________
[Insert title]
102
<PAGE>
SCHEDULE A
LIQUIDATION
AMOUNT OF
FIRM SECURITIES
UNDERWRITER
Credit Suisse First Boston Corporation . . . . [$]
PaineWebber Incorporated . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . [$]
103
<PAGE> Exhibit 4-A
=======================================
SOUTH CAROLINA ELECTRIC & GAS COMPANY
as Issuer
to
THE BANK OF NEW YORK,
as Trustee
- ---------------------------
JUNIOR SUBORDINATED INDENTURE
Dated as of ___________ 1, 1997
- ---------------------------
===========================================
SOUTH CAROLINA ELECTRIC & GAS COMPANY
Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and
including 317 which, pursuant to Section 318(c) of the Trust
Indenture Act of 1939, as amended by the Trust Reform Act of 1990,
are a part of and govern the Indenture whether or not physically
contained therein) and the Junior Subordinated Indenture, dated as
of ___________ 1, 1997.
104
<PAGE>
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
Section 310 (a) (1), (2) and (5) 6.9
(a) (3) Not Applicable
(a) (4) Not Applicable
(b) 6.8, 6.10(d)
(c) Not Applicable
Section 311 (a) 6.13
(b) 6.13
(c) Not Applicable
Section 312 (a) 7.1, 7.2(a)
(b) 7.2(b)
(c) 7.2(c)
Section 313 (a) 7.3(a), (b)
(b) 7.3(a)
(c) 7.3(a)
(d) 7.3(c)
Section 314 (a) (1), (2) and (3) 7.4
(a) (4) 10.4
(b) Not Applicable
(c) (1) 1.2
(c) (2) 1.2
(c) (3) Not Applicable
(d) Not Applicable
(e) 1.2
(f) Not Applicable
Section 315 (a) 6.1(a)
(b) 6.2
(c) 6.1(b)
(d) 6.1(c)
(d) (1) 6.1(c)(i)
(d) (2) 6.1(c)(ii)
(d) (3) 6.1(c) (iii)
(e) 5.14
Section 316 (a) 1.1
(a) (1) (A) 5.12
(a) (1) (B) 5.13
(a) (2) Not Applicable
(b) 5.7, 5.8
(c) 1.4(f)
Section 317 (a) (1) 5.3
(a) (2) 5.4
(b) 10.3
Section 318 (a) 1.7
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Junior Subordinated Indenture.
105
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
SECTION 1.1. Definitions 1
SECTION 1.2. Compliance Certificate and Opinions 10
SECTION 1.3. Forms of Documents Delivered to
Trustee 10
SECTION 1.4. Acts of Holders 11
SECTION 1.5. Notices, Etc. to the Trustee and the
Corporation 13
SECTION 1.6. Notice to Holders; Waiver 13
SECTION 1.7. Conflict with Trust Indenture Act 14
SECTION 1.8. Effect of Headings and Table of
Contents 14
SECTION 1.9. Successors and Assigns 14
SECTION 1.10. Separability Clause 14
SECTION 1.11. Benefits of Indenture 14
SECTION 1.12. Governing Law 15
SECTION 1.13. Non-Business Days 15
ARTICLE II
SECURITY FORMS 15
SECTION 2.1. Forms Generally 15
SECTION 2.2. Form of Face of Security 15
SECTION 2.3. Form of Reverse of Security 19
SECTION 2.4. Additional Provisions Required in
Global Security 23
SECTION 2.5. Form of Trustee's Certificate of
Authentication 23
ARTICLE III
THE SECURITIES 23
SECTION 3.1. Title and Terms 23
SECTION 3.2. Denominations 26
SECTION 3.3. Execution, Authentication, Delivery
and Dating 27
SECTION 3.4. Temporary Securities 28
SECTION 3.5. Global Securities 28
SECTION 3.6. Registration, Transfer and Exchange
Generally 30
SECTION 3.7. Mutilated, Destroyed, Lost and
Stolen Securities 31
106
<PAGE>
SECTION 3.8. Payment of Interest and Additional
Interest; Interest Rights Preserved 32
SECTION 3.9. Persons Deemed Owners 33
SECTION 3.10. Cancellation 33
SECTION 3.11. Computation of Interest 34
SECTION 3.12. Deferrals of Interest Payment Dates 34
SECTION 3.13. Right of Set Off 35
SECTION 3.14. Agreed Tax Treatment 35
SECTION 3.15. Shortening or Extension of Stated
Maturity 35
SECTION 3.16. CUSIP Numbers 35
ARTICLE IV
SATISFACTION AND DISCHARGE 36
SECTION 4.1. Satisfaction and Discharge of Indenture 36
SECTION 4.2. Application of Trust Money 37
ARTICLE V
REMEDIES 37
SECTION 5.1. Events of Default 37
SECTION 5.2. Acceleration of Maturity; Rescission
and Annulment 38
SECTION 5.3. Collection of Indebtedness and Suits
for Enforcement by Trustee 40
SECTION 5.4. Trustee May File Proofs of Claim 40
SECTION 5.5. Trustee May Enforce Claim Without
Possession of Securities 41
SECTION 5.6. Application of Money Collected 41
SECTION 5.7. Limitation on Suits 42
SECTION 5.8. Unconditional Right of Holders to
Receive Principal, Premium and
Interest; Direct Action by Holders
of Trust Preferred Securities 42
SECTION 5.9. Restoration of Rights and Remedies 43
SECTION 5.10. Rights and Remedies Cumulative 43
SECTION 5.11. Delay or Omission Not Waiver 43
SECTION 5.12. Control by Holders 44
SECTION 5.13. Waiver of Past Defaults 44
SECTION 5.14. Undertaking for Costs 45
SECTION 5.15. Waiver of Usury, Stay or Extension Laws 45
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ARTICLE VI
THE TRUSTEE 45
SECTION 6.1. Certain Duties and Responsibilities 45
SECTION 6.2. Notice of Defaults 46
SECTION 6.3. Certain Rights of Trustee 47
SECTION 6.4. Not Responsible for Recitals or Issuance
of Securities 48
SECTION 6.5. May Hold Securities 48
SECTION 6.6. Money Held in Trust 48
SECTION 6.7. Compensation and Reimbursement 48
SECTION 6.8. Disqualification; Conflicting Interests 49
SECTION 6.9. Corporate Trustee Required; Eligibility 49
SECTION 6.10. Resignation and Removal; Appointment
of Successor 50
SECTION 6.11. Acceptance of Appointment by Successor 51
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business 52
SECTION 6.13. Preferential Collection of Claims
Against Corporation 52
SECTION 6.14. Appointment of Authenticating Agent 52
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND CORPORATION 54
SECTION 7.1. Corporation to Furnish Trustee Names
and Addresses of Holders 54
SECTION 7.2. Preservation of Information,
Communications to Holders 54
SECTION 7.3. Reports by Trustee 55
SECTION 7.4. Reports by Corporation 55
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE 55
SECTION 8.1. Corporation May Consolidate, Etc.,
Only on Certain Terms 55
SECTION 8.2. Successor Corporation Substituted 56
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ARTICLE IX
SUPPLEMENTAL INDENTURES 57
SECTION 9.1. Supplemental Indentures without
Consent of Holders 57
SECTION 9.2. Supplemental Indentures with Consent
of Holders 58
SECTION 9.3. Execution of Supplemental Indentures 59
SECTION 9.4. Effect of Supplemental Indentures 59
SECTION 9.5. Conformity with Trust Indenture Act 60
SECTION 9.6. Reference in Securities to
Supplemental Indentures 60
ARTICLE X
COVENANTS 60
SECTION 10.1. Payment of Principal, Premium and
Interest 60
SECTION 10.2. Maintenance of Office or Agency 60
SECTION 10.3. Money for Security Payments to be
Held in Trust 61
SECTION 10.4. Statement as to Compliance 62
SECTION 10.5. Waiver of Certain Covenants 62
SECTION 10.6. Additional Sums 63
SECTION 10.7. Additional Covenants 63
SECTION 10.8. Original Issue Discount 64
ARTICLE XI
REDEMPTION OF SECURITIES 64
SECTION 11.1 Applicability of This Article 64
SECTION 11.2. Election to Redeem; Notice to Trustee 65
SECTION 11.3. Selection of Securities to be Redeemed 65
SECTION 11.4. Notice of Redemption 65
SECTION 11.5. Deposit of Redemption Price 66
SECTION 11.6. Payment of Securities Called for
Redemption 67
SECTION 11.7. Right of Redemption of Securities
Initially Issued to an Issuer Trust 67
ARTICLE XII
SINKING FUNDS 68
SECTION 12.1. Applicability of Article 68
SECTION 12.2. Satisfaction of Sinking Fund Payments
with Securities 68
SECTION 12.3. Redemption of Securities for Sinking
Fund 68
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ARTICLE XIII
SUBORDINATION OF SECURITIES 70
SECTION 13.1. Securities Subordinate to Senior Debt 70
SECTION 13.2. No Payment When Senior Debt in Default;
Payment Over of Proceeds Upon
Dissolution, Etc 70
SECTION 13.3. Payment Permitted If No Default 72
SECTION 13.4. Subrogation to Rights of Holders of
Senior Debt 72
SECTION 13.5. Provisions Solely to Define Relative
Rights 72
SECTION 13.6. Trustee to Effectuate Subordination 73
SECTION 13.7. No Waiver of Subordination Provisions 73
SECTION 13.8. Notice to Trustee 73
SECTION 13.9. Reliance on Judicial Order or
Certificate of Liquidating Agent 74
SECTION 13.10. Trustee Not Fiduciary for Holders of
Senior Debt 74
SECTION 13.11. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's
Rights 75
SECTION 13.12. Article Applicable to Paying Agents 75
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JUNIOR SUBORDINATED INDENTURE, dated as of ___________ 1,
1997, between South Carolina Electric & Gas Company, a South
Carolina corporation (the "Corporation"), and The Bank of New York,
a corporation organized and existing under the laws of the State of
New York, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Corporation has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to
time of its unsecured junior subordinated debt securities in series
(hereinafter called the "Securities") of substantially the tenor
hereinafter provided, including Securities issued to evidence loans
made to the Corporation of the proceeds from the issuance from time
to time by one or more business trusts (each an "Issuer Trust") of
preferred undivided beneficial interests in the assets of such
Issuer Trusts (the "Trust Preferred Securities") and common
undivided beneficial interests in the assets of such Issuer Trusts
(the "Common Securities" and, collectively with the Trust Preferred
Securities, the "Trust Securities"), and to provide the terms and
conditions upon which the Securities are to be authenticated,
issued and delivered; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Corporation in accordance with its terms, have
been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, 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;
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(c) The words "include," "includes" and "including"
shall be deemed to be followed by the phrase "without limitation";
(d) All accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles;
(e) Whenever the context may require, any gender shall
be deemed to include the others;
(f) Unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an Article or a
Section, as the case may be, of this Indenture; and
(g) The words "hereby," "herein," "hereof" and
"hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or
other subdivision.
"Act" when used with respect to any Holder has the meaning
specified in Section 1.4.
"Additional Interest" means the interest, if any, that shall
accrue on any interest on the Securities of any series the payment
of which has not been made on the applicable Interest Payment Date
and which shall accrue at the rate per annum specified or
determined as specified in such Security.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means any additional taxes, duties and
other governmental charges to which an Issuer Trust has become
subject from time to time as a result of a Tax Event.
"Administrative Trustees" means, in respect of any Issuer
Trust, each Person identified as an "Administrative Trustee" in the
related Trust Agreement, solely in such Person's capacity as
Administrative Trustee of such Issuer Trust under such Trust
Agreement and not in such Person's individual capacity, or any
successor administrative trustee appointed as therein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the
purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Agent Member" means any member of, or participant in, the
Depositary.
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"Allocable Amounts," when used with respect to any Senior
Subordinated Indebtedness of the Corporation means the amount
necessary to pay all principal of (and premium, if any) and
interest, if any, on such Senior Subordinated Indebtedness of the
Corporation, in full less, if applicable, any portion of such
amounts which would have been paid to, and retained by, the holders
of such Senior Subordinated Indebtedness (whether as a result of
the receipt of payments by the holders of such Senior Subordinated
Indebtedness from the Corporation or any other obligor thereon or
from any holders of, or trustee in respect of, other indebtedness
that is subordinate and junior in right of payment to such Senior
Subordinated Indebtedness pursuant to any provision of such
indebtedness for the payment over of amounts received on account of
such indebtedness to the holders of such Senior Subordinated
Indebtedness) but for the fact that such Senior Subordinated
Indebtedness is subordinate or junior in right of payment to trade
accounts payable or accrued liabilities arising in the ordinary
course of business.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest
therein, the rules and procedures of the Depositary for such
Security, in each case to the extent applicable to such transaction
and as in effect from time to time.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Bankruptcy Code" means Title 11 of the United States Code or
any successor statute thereto, in each case as amended from time to
time.
"Board of Directors" means the board of directors of the
Corporation or the Executive Committee of the board of directors of
the Corporation (or any other committee of the board of directors
of the Corporation performing similar functions) or a committee
designated by the board of directors of the Corporation (or such
committee), comprised of two or more members of the board of
directors or officers, or both, of the Corporation in each case as
the context requires.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Corporation to have
been duly adopted by the Board of Directors, or officers of the
Corporation 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 Trustee.
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"Business Day" means any 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 (c) a day on which the Corporate Trust Office of the
Trustee, or, with respect to the Securities of a series initially
issued to an Issuer Trust for so long as such Securities are held
by such Issuer Trust, the "Corporate Trust Office" (as defined in
the related Trust Agreement) of the Property Trustee under the
related Trust Agreement, is closed for business.
"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 on such date.
"Common Securities" has the meaning specified in the first
recital of this Indenture.
"Common Stock" means the common stock of the Corporation.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust
business shall be administered.
"Corporation" includes a corporation, association, company,
limited liability company, joint-stock company or business trust.
"Corporation" means the Person named as the "Corporation" in
the first paragraph of this Indenture until a successor corporation
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Corporation" shall mean such
successor corporation.
"Corporation Request" and "Corporation Order" mean,
respectively, the written request or order signed in the name of
the Corporation by the Chairman of the Board of Directors, its
Chief Executive Officer, its President, its Chief Financial
Officer, a Vice President or its Treasurer, and by its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Debt" means, with respect to any Person, whether recourse is
to all or a portion of the assets of such Person and whether or not
contingent and without duplication, (i) every obligation of such
Person for money borrowed; (ii) every obligation of such Person
evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition
of property, assets or businesses; (iii) every reimbursement
obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account
of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but
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excluding trade accounts payable or accrued liabilities arising in
the ordinary course of business); (v) every capital lease
obligation of such Person; (vi) all indebtedness of the
Corporation, whether incurred on or prior to the date of this
Indenture or thereafter incurred, for claims in respect of
derivative products, including interest rate, foreign exchange rate
and commodity forward contracts, options and swaps and similar
arrangements; and (vii) every obligation of the type referred to in
clauses (i) through (vi) of another Person and all dividends of
another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable for, directly or
indirectly, as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.8.
"Delaware Trustee" means, with respect to any Issuer Trust,
the Person identified as the "Delaware Trustee" in the related
Trust Agreement, solely in its capacity as Delaware Trustee of such
Issuer Trust under such Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any
successor Delaware trustee appointed as therein provided.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or
more Global Securities, the Person designated as Depositary by the
Corporation pursuant to Section 3.1 with respect to such series (or
any successor thereto).
"Discount Security" means any security that provides for an
amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant
to Section 5.2.
"Distributions," with respect to the Trust Securities issued
by an Issuer Trust, means amounts payable in respect of such Trust
Securities as provided in the related Trust Agreement and referred
to therein as "Distributions."
"Dollar" or "$" means the currency of the United States of
America that, as at the time of payment, is legal tender for the
payment of public and private debts.
"Event of Default," unless otherwise specified with respect to
a series of Securities as contemplated by Section 3.1, has the
meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 or
any statute successor thereto, in each case as amended from time to
time.
"Expiration Date" has the meaning specified in Section 1.4.
"Extension Period" has the meaning specified in Section 3.12.
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"Global Security" means a Security in the form prescribed in
Section 2.4 evidencing all or part of a series of Securities,
issued to the Depositary or its nominee for such series, and
registered in the name of such Depositary or its nominee.
"Guarantee Agreement" means, with respect to any Issuer Trust,
the Guarantee Agreement executed by the Corporation for the benefit
of the Holders of the Trust Preferred Securities issued by such
Issuer Trust as modified, amended or supplemented from time to
time.
"Holder" means a Person in whose name a Security is registered
in the Securities Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of each
particular series of Securities established as contemplated by
Section 3.1.
"Interest Payment Date" means, as to each series of
Securities, the Stated Maturity of an installment of interest on
such Securities.
"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" has the meaning specified in the first recital
of this Indenture.
"Maturity" when used with respect to any Security means the
date on which the principal of such Security or any installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 6.2.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President,
the Chief Financial Officer, a Vice President, the Chief Financial
Officer or the Treasurer, and by the Secretary or an Assistant
Secretary, of the Corporation and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Corporation or any
Affiliate of the Corporation.
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"Original Issue Date" means the date of issuance specified as
such in each Security.
"Outstanding" means, when used in reference to the Securities,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities for whose payment money in the necessary
amount has been theretofore deposited with the Trustee or any
Paying Agent in trust for the Holders of such Securities; and
(c) Securities in substitution for or in lieu of which
other Securities have been authenticated and delivered or that have
been paid pursuant to Section 3.7, unless proof satisfactory to the
Trustee is presented that any such Securities are held by Holders
in whose hands such Securities are valid, binding and legal
obligations of the Corporation;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Corporation or any other
obligor upon the Securities or any Affiliate of the Corporation or
such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities that the Trustee knows to be so owned shall be so
disregarded. Securities so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the
Corporation or any other obligor upon the Securities or any
Affiliate of the Corporation or such other obligor. Upon the
written request of the Trustee, the Corporation shall furnish to
the Trustee promptly an Officers' Certificate listing and
identifying all Securities, if any, known by the Corporation to be
owned or held by or for the account of the Corporation, or any
other obligor on the Securities or any Affiliate of the Corporation
or such obligor, and subject to the provisions of Section 6.1, the
Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact
that all Securities not listed therein are Outstanding for the
purpose of any such determination. Notwithstanding anything herein
to the contrary, Securities of any series initially issued to an
Issuer Trust that are owned by such Issuer Trust shall be deemed to
be Outstanding notwithstanding the ownership by the Corporation or
an Affiliate of any beneficial interest in such Issuer Trust.
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"Paying Agent" means the Trustee or any Person authorized by
the Corporation to pay the principal of (or premium, if any) or
interest on, or other amounts in respect of, any Securities on
behalf of the Corporation.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, trust,
unincorporated association or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Place of Payment" means, with respect to the Securities of
any series, the place or places where the principal of (and
premium, if any) and interest on the Securities of such series are
payable pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security. For the purposes of
this definition, any security authenticated and delivered under
Section 3.7 in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, with respect to any Issuer Trust,
the Person identified as the "Property Trustee" in the related
Trust Agreement, solely in its capacity as Property Trustee of such
Issuer Trust under such Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any
successor Property Trustee appointed as therein provided.
"Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture or the terms of such Security.
"Redemption Price," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date with respect to the Securities of a series means,
unless otherwise provided pursuant to Section 3.1 with respect to
Securities of such series, the date that is 15 days next preceding
such Interest Payment Date (whether or not a Business Day).
"Responsible Officer," when used with respect to the 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,
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the controller or any assistant controller or any other officer of
the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Rights Plan" means a plan of the Corporation providing for
the issuance by the Corporation to all holders of its Common Stock
of rights entitling the holders thereof to subscribe for or
purchase shares of any class or series of capital stock of the
Corporation which rights (i) are deemed to be transferred with such
shares of such Common Stock and (ii) are also issued in respect of
future issuances of such Common Stock, in each case until the
occurrence of a specified event or events.
"Securities" or "Security" means any debt securities or debt
security, as the case may be, authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 or 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 3.6.
"Senior Debt" of the Corporation means (i) Senior Indebtedness
of the Corporation (but excluding trade accounts payable and
accrued liabilities arising in the ordinary course of business) and
(ii) the Allocable Amounts of Senior Subordinated Indebtedness of
the Corporation.
"Senior Indebtedness" means any obligation of the Corporation
to its creditors, whether now outstanding or subsequently incurred,
other than any obligation as to which, in the instrument creating
or evidencing the obligation or pursuant to which the obligation is
outstanding, it is provided that such obligation is not Senior
Indebtedness. Senior Indebtedness does not include Senior
Subordinated Indebtedness or the Securities.
"Senior Subordinated Indebtedness" means any obligation of the
Corporation to its creditors, whether now outstanding or
subsequently incurred, where the instrument creating or evidencing
the obligation or pursuant to which the obligation is outstanding
provides that it is subordinate and junior in right of payment to
Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
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"Stated Maturity," when used with respect to any Security or
any installment of principal thereof (or premium, if any) or
interest (including any Additional Interest) thereon, means the
date specified pursuant to the terms of such Security as the fixed
date on which the principal of such Security or such installment of
principal (or premium, if any) or interest (including any
Additional Interest) is due and payable, as such date may, in the
case of the stated maturity of the principal on any security, be
shortened or extended as provided pursuant to the terms of such
Security and this Indenture and, in the case of any installment of
interest, subject to the deferral of any such date in the case of
any Extension Period.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly,
by the Corporation or by one or more other Subsidiaries, or by the
Corporation and one or more other Subsidiaries. For purposes of
this definition, "voting stock" means stock that ordinarily has
voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power by
reason of any contingency.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same
debt as that evidenced by, such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 3.7 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Tax Event" means the receipt by an Issuer Trust of an Opinion
of Counsel (as defined in the relevant Trust Agreement) experienced
in such matters to the effect that, as a result of any amendment
to, or change (including any announced proposed change) in, the
laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or as
a result of any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision
is announced on or after the date of issuance of the Trust
Preferred Securities of such Issuer Trust, there is more than an
insubstantial risk that (i) such Issuer Trust is, or will be within
90 days of the delivery of such Opinion of Counsel, subject to
United States federal income tax with respect to income received or
accrued on the corresponding series of Securities issued by the
Corporation to such Issuer Trust, (ii) interest payable by the
Corporation on such corresponding series of Securities is not, or
within 90 days of the delivery of such Opinion of Counsel will not
be, deductible by the Corporation, in whole or in part, for United
States federal income tax purposes or (iii) such Issuer Trust is,
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or will be within 90 days of the delivery of such Opinion of
Counsel, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"Trust Agreement" means, with respect to any Issuer Trust, the
trust agreement or other governing instrument of such Issuer Trust.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, solely in its capacity as such and not
in its individual capacity, until a successor Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder and, if at any time there is
more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended and as in effect on the date as of this Indenture,
except as provided in Section 9.5.
"Trust Preferred Securities" has the meaning specified in the
first recital of this Indenture.
"Trust Securities" has the meaning specified in the first
recital of this Indenture.
"Vice President" 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," of the Corporation.
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Corporation to the
Trustee to take any action under any provision of this Indenture,
the Corporation shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent (including
covenants compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent
(including covenants compliance with which constitutes a condition
precedent), if any, have been complied with, except that in the
case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other than
the certificates provided pursuant to Section 10.4) shall include:
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(a) a statement by each individual signing such
certificate or opinion that such individual has read such covenant
or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
of such individual contained in such certificate or opinion are
based;
(c) a statement that, in the opinion of such individual,
he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(d) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Corporation
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Corporation stating that the information with
respect to such factual matters is in the possession of the
Corporation unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
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SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given to 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 herein otherwise expressly provided, such action
shall become effective when such instrument or instruments is or
are delivered to the Trustee, and, where it is hereby expressly
required, to the Corporation. 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 Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Corporation
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by the certificate of any 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 or her the execution thereof. Where
such execution is by a Person acting in other than his or her
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his or her authority.
(c) The fact and date of the execution by any Person of any
such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner that the
Trustee deems sufficient and in accordance with such reasonable
rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the
Securities Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or suffered
to be done by the Trustee or the Corporation in reliance thereon,
whether or not notation of such action is made upon such Security.
(f) The Corporation may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of any
series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series, provided that the
Corporation may not set a record date for, and the provisions of
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this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to
in the next succeeding paragraph. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities
of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date, provided that no
such action shall be effective hereunder unless taken on or prior
to the applicable Expiration Date (as defined below) by Holders of
the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be
construed to prevent the Corporation from setting a new record date
for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously
set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Corporation,
at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities of
the relevant series in the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any series
entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in
Section 5.2, (iii) any request to institute proceedings referred to
in Section 5.7(b) or (iv) any direction referred to in Section
5.12, in each case with respect to Securities of such series. If
any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders
remain Holders after such record date, provided that no such action
shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record
date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and
nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant to
this paragraph, the Trustee, at the Corporation's expense, shall
cause notice of such record date, the proposed action by Holders
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and the applicable Expiration Date to be given to the Corporation
in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section,
the party that sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration
Date to any earlier or later day, provided that no such change
shall be effective unless notice of the proposed new Expiration
Date is given to the other party hereto in writing, and to each
Holder of Securities of the relevant series in the manner set forth
in Section 1.6, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date
set pursuant to this Section, the party hereto that set such record
date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in
this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any
particular Security may do so with regard to all or any part of the
principal amount of such 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 principal amount.
SECTION 1.5. Notices, Etc. to the Trustee and the
Corporation.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(a) the Trustee by any Holder, any holder of Trust
Preferred Securities or the Corporation shall be sufficient for
every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(b) the Corporation by the Trustee, any Holder or any
holder of Trust Preferred Securities shall be sufficient for every
purpose (except as otherwise provided in Section 6.2) hereunder if
in writing and mailed, first class, postage prepaid, to the
Corporation addressed to it at the address of its principal office
specified adjacent to the Corporation's signature to this
instrument or at any other address previously furnished in writing
to the Trustee by the Corporation.
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SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first class
postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Securities Register,
not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. If, by reason of
the suspension of or irregularities in regular mail service or for
any other reason, it shall be impossible or impracticable to mail
notice of any event to Holders when said notice is required to be
given pursuant to any provision of this Indenture or of the
relevant Securities, then any manner of giving such notice as shall
be satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice. In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by any of 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 Indenture 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 Indenture as so
modified or to be excluded, as the case may be.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the
Corporation shall bind its successors and assigns, whether so
expressed or not.
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SECTION 1.10. Separability Clause.
If any provision in this Indenture or in the Securities 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 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto
and their successors and assigns, the holders of Senior Debt, the
Holders of the Securities and, to the extent expressly provided in
Sections 5.1, 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2, the holders
of Trust Preferred Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the
Securities) payment of interest or principal (and premium, if any)
or other amounts in respect of such Security need not be made on
such date, but may be made on the next succeeding Business Day (and
no interest shall accrue in respect of the amounts whose payment is
so delayed for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, until
such next succeeding Business Day) except that, if such Business
Day falls in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day (in each case
with the same force and effect as if made on the Interest Payment
Date or Redemption Date or at the Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in
this Article, or in such other form or forms as shall be
established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters,
numbers or other marks of identification and such legends or
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endorsements placed thereon as may be required to comply with
applicable tax laws or the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing
such securities, as evidenced by their execution of the Securities.
If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Corporation and delivered to the Trustee
at or prior to the delivery of the Corporation Order contemplated
by Section 3.3 with respect to the authentication and delivery of
such Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods, if
required by any securities exchange on which the Securities may be
listed, on a steel engraved border or steel engraved borders or may
be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced
by their execution of such Securities.
SECTION 2.2. Form of Face of Security.
SOUTH CAROLINA ELECTRIC & GAS COMPANY
[TITLE OF SECURITY]
No. $
SOUTH CAROLINA ELECTRIC & GAS COMPANY, a corporation organized
and existing under the laws of South Carolina (hereinafter called
the "Corporation," which term includes any successor Person under
the Indenture hereinafter referred to), for value received, hereby
promises to pay to _______________, or registered assigns, the
principal sum of __________ Dollars on __________ __, [if the
Security is a Global Security, then insert, if applicable--, or
such other principal amount represented hereby as may be set forth
in the records of the Securities Registrar hereinafter referred to
in accordance with the Indenture,] [; provided that the Corporation
may (i) shorten the Stated Maturity of the principal of this
Security to a date not earlier than __________, in the
circumstances described on the reverse hereof. The Corporation
further promises to pay interest on said principal sum from
_______________________, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for,
[monthly] [quarterly] [semi-annually] [if applicable, insert--
(subject to deferral as set forth herein)] in arrears on [insert
applicable Interest Payment Dates] of each year, commencing
, at the rate of % per annum, [if
applicable insert--together with Additional Sums, if any, as
provided in Section 10.6 of the Indenture] until the principal
hereof is paid or duly provided for or made available for payment
[if applicable, insert-- ; provided that any overdue principal,
premium or Additional Sums and any overdue installment of interest
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shall bear Additional Interest at the rate of ________% per annum
(to the extent that the payment of such interest shall be legally
enforceable), compounded [monthly] [quarterly] [semi-annually],
from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on
demand]. The amount of interest payable for any period less than a
full interest period shall be computed on the basis of a 360- day
year of twelve 30-day months and the actual days elapsed in a
partial month in such period. The amount of interest payable for
any full interest period shall be computed by dividing the
applicable rate per annum by [twelve/four/two]. The interest so
payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the regular
record date (the "Regular Record Date") for such interest
installment [if applicable insert--, which shall be the
[____________ or ____________] (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date]. Any
such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record
Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities of this series not less
than ten days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of
this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
[If applicable, insert--So long as no Event of Default has
occurred and is continuing, the Corporation shall have the right,
at any time during the term of this Security, from time to time to
defer the payment of interest on this Security for up to [_______]
consecutive [monthly] [quarterly] [semi-annual] interest payment
periods with respect to each deferral period (each an "Extension
Period") [If applicable, insert--, during which Extension Periods
the Corporation shall have the right to make partial payments of
interest on any Interest Payment Date, and] at the end of which the
Corporation shall pay all interest then accrued and unpaid
including any Additional Interest, as provided below; provided,
however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of this Security [If Stated Maturity can
be shortened or extended, insert--, as then in effect,] and no such
Extension Period may end on a date other than an Interest Payment
Date; and provided, further, that during any such Extension Period,
the Corporation shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Corporation's
capital stock, or (ii) make any payment of principal of or interest
or premium, if any, on or repay, repurchase or redeem any debt
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securities of the Corporation that rank pari passu in all respects
with or junior in interest to this Security (other than (a)
repurchases, redemptions or other acquisitions of shares of capital
stock of the Corporation in connection with any employment
contract, benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance
of capital stock of the Corporation (or securities convertible into
or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable
Extension Period, (b) as a result of an exchange or conversion of
any class or series of the Corporation's capital stock (or any
capital stock of a Subsidiary of the Corporation) for any class or
series of the Corporation's capital stock or of any class or series
of the Corporation's indebtedness for any class or series of the
Corporation's capital stock, (c) the purchase of fractional
interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a
dividend in connection with any Rights Plan, or the issuance of
rights, stock or other property under any Rights Plan, or the
redemption or repurchase of rights pursuant thereto or (e) any
dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior
to such stock). Prior to the termination of any such Extension
Period, the Corporation may further defer the payment of interest,
provided that no Extension Period shall exceed consecutive
[monthly] [quarterly] [semi-annual] interest payment periods,
extend beyond the Stated Maturity of the principal of this Security
or end on a date other than an Interest Payment Date. Upon the
termination of any such Extension Period and upon the payment of
all accrued and unpaid interest and any Additional Interest then
due on any Interest Payment Date, the Corporation may elect to
begin a new Extension Period, subject to the above conditions. No
interest shall be due and payable during an Extension Period,
except at the end thereof, but each installment of interest that
would otherwise have been due and payable during such Extension
shall bear Additional Interest (to the extent that the payment of
such interest shall be legally enforceable) at the rate of ____%
per annum, compounded [monthly] [quarterly] [semi-annually] and
calculated as set forth in the first paragraph of this Security,
from the dates on which amounts would otherwise have been due and
payable until paid or made available for payment. The Corporation
shall give the Holder of this Security and the Trustee notice of
its election to begin any Extension Period at least one Business
Day prior to the next succeeding Interest Payment Date on which
interest on this Security would be payable but for such deferral
[if applicable, insert--or so long as such Securities are held by
[insert name of applicable Issuer Trust], at least one Business Day
prior to the earlier of (i) the next succeeding date on which
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Distributions on the Trust Preferred Securities of such Issuer
Trust would be payable but for such deferral and (ii) the date on
which the Property Trustee of such Issuer Trust is required to give
notice to any securities exchange or other applicable self-
regulatory organization or to holders of such Trust Preferred
Securities of the record date or the date such Distributions are
payable].
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the
Corporation maintained for that purpose in the [insert Place of
Payment], in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert--; provided, however, that at
the option of the Corporation payment of interest may be made (i)
by check mailed to the address of the Person entitled thereto as
such address shall appear in the Securities Register or (ii) by
wire transfer in immediately available funds at such place and to
such account as may be designated by the Person entitled thereto as
specified in the Securities Register].
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Debt, and this
Security is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Security, by accepting the
same, (i) agrees to and shall be bound by such provisions, (ii)
authorizes and directs the Trustee on his or her behalf to take
such actions as may be necessary or appropriate to effectuate the
subordination so provided and (iii) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof,
by his or her acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in
the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Corporation has caused this instrument
to be duly executed under its corporate seal.
SOUTH CAROLINA ELECTRIC & GAS COMPANY
By:
Name:
Title:
Attest:
- ----------------------------------
[Secretary or Assistant Secretary]
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Corporation (herein called the "Securities"), issued and to
be issued in one or more series under the Junior Subordinated
Indenture, dated as of _____________ ___, 1997 (herein called the
"Indenture"), between the Corporation and
, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Corporation, the
Trustee, the holders of Senior Debt and the Holders of the
Securities, and of the terms upon which the Securities are, and are
to be, authenticated and delivered. This Security is one of the
series designated on the face hereof [if applicable, insert--,
limited in aggregate principal amount to $ ].
All terms used in this Security that are defined in the
Indenture [if applicable, insert--or in the Amended and Restated
Trust Agreement, dated as of ___________, 199__ (as modified,
amended or supplemented from time to time, the "Trust Agreement"),
relating to [insert name of Issuer Trust] (the "Issuer Trust")
among the Corporation, as Depositor, the Trustees named therein and
the Holders from time to time of the Trust Securities issued
pursuant thereto, shall have the meanings assigned to them in the
Indenture [if applicable, insert--or the Trust Agreement, as the
case may be].
[If applicable, insert--The Corporation may at any time, at
its option, on or after _________, ____, and subject to the terms
and conditions of Article XI of the Indenture, redeem this Security
in whole at any time or in part from time to time, at the following
Redemption Prices (expressed as percentages of the principal amount
hereof): If redeemed during the 12-month period beginning
_____________,
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Redemption
Year Price
and thereafter at a Redemption Price equal to 100% of the principal
amount hereof, together, in the case of any such redemption, with
accrued interest [if applicable, insert--, including any Additional
Interest,] to but excluding the date fixed for redemption.]
[If applicable, insert--In addition, upon the occurrence and
during the continuation of a Tax Event in respect of the Issuer
Trust, the Corporation may, at its option, at any time within 90
days of the occurrence and during the continuation of such Tax
Event redeem this Security, in whole but not in part, subject to
the terms and conditions of Article XI of the Indenture, at a
redemption price equal to [insert formula]].
[If the Security is subject to redemption of any kind, insert-
- -In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[If applicable, insert--If at any time a Tax Event occurs and
(i) in the opinion of counsel to the Corporation experienced in
such matters, there would in all cases, after effecting the
termination of any Trust which holds this Security and the
distribution of this Security to the holders of the Trust
Securities of such Trust in exchange therefor, be more than an
insubstantial risk that an Adverse Tax Consequence (as defined
below) would continue to exist or (ii) this Security is not held by
a Trust, then the Corporation shall have the right (a) to shorten
the Stated Maturity of this Security to the minimum extent
required, but in any event to a date not earlier than ____________
(the action referred to in this clause (a) being referred to herein
as a "Maturity Advancement"), such that, in the opinion of counsel
to the Corporation experienced in such matters, after advancing the
Stated Maturity, interest paid hereon will be deductible for United
States federal income tax purposes or (b) if in the opinion of
counsel to the Corporation experienced in such matters, there would
in all cases, after effecting a Maturity Advancement, be more than
an insubstantial risk that an Adverse Tax Consequence would
continue to exist to redeem this Security, in whole but not in
part, at any time within 90 days following the occurrence of the
Tax Event at a Redemption Price equal to [insert formula]. "Adverse
Tax Consequence" means any of the following circumstances: (i) a
Trust which holds this Security is, or will be, within 90 days of
the Opinion of Counsel giving rise to a Tax Event, subject to
United States federal income tax with respect to income received or
accrued to this Security, (ii) interest payable by the Corporation
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on this Security is not, or within 90 days of the date of such
Opinion of Counsel will not be, deductible by the Corporation, in
whole or in part, for United States federal income tax purposes or
(iii) a Trust which holds this Security is, or will be within 90
days of the date of such Opinion of Counsel, subject to more than
a de minimis amount of other taxes, duties or other governmental
charges.]
The Indenture contains provisions for satisfaction and
discharge of the entire indebtedness of this Security upon
compliance by the Corporation with certain conditions set forth in
the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Corporation and the Trustee at any time to enter into
a supplemental indenture or indentures for the purpose of modifying
in any manner the rights and obligations of the Corporation and of
the Holders of the Securities, with the consent of the Holders of
not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting
Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by
the Corporation with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders
of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
[If the Security is not a Discount Security, insert--As
provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to the Securities of this series at
the time Outstanding occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of
this series to be due and payable immediately, by a notice in
writing to the Corporation (and to the Trustee if given by Holders)
[if applicable, insert--, provided that, if upon an Event of
Default, the Trustee or such Holders fail to declare the principal
of all the Outstanding Securities of this series to be immediately
due and payable, the holders of at least 25% in aggregate
Liquidation Amount of the Trust Preferred Securities then
Outstanding shall have the right to make such declaration by a
notice in writing to the Corporation and the Trustee]; and upon any
such declaration the principal amount of and the accrued interest
(including any Additional Interest) on all the Securities of this
series shall become immediately due and payable, provided that the
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payment of principal and interest (including any Additional
Interest) on such Securities shall remain subordinated to the
extent provided in Article XIII of the Indenture.]
[If the Security is a Discount Security, insert--As provided
in and subject to the provisions of the Indenture, if an Event of
Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of this series may
declare an amount of principal of the Securities of this series to
be due and payable immediately, by a notice in writing to the
Corporation (and to the Trustee if given by Holders) [if
applicable, insert--, provided that, if upon an Event of Default,
the Trustee or such Holders fail to declare such principal amount
of the Outstanding Securities of this series to be immediately due
and payable, the holders of at least 25% in aggregate Liquidation
Amount of the Trust Preferred Securities then Outstanding shall
have the right to make such declaration by a notice in writing to
the Corporation and the Trustee]. The principal amount payable upon
such acceleration shall be equal to--insert formula for determining
the amount]. Upon any such declaration, such amount of the
principal of and the accrued interest (including any Additional
Interest) on all the Securities of this series shall become
immediately due and payable, provided that the payment of such
principal and interest (including any Additional Interest) on all
the Securities of this series shall remain subordinated to the
extent provided in Article XIII of the Indenture. Upon payment (i)
of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be
legally enforceable), all of the Corporation's obligations in
respect of the payment of the principal of and premium and
interest, if any, on this Security shall terminate.]
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation
of the Corporation, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest [insert if
applicable--including any Additional Interest)] on this Security at
the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Securities Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Corporation maintained under Section 10.2 of the Indenture for
such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Corporation and
the Securities Registrar duly executed by, the Holder hereof or
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such Holder's attorney duly authorized in writing, and thereupon
one or more new Securities of this series, of like tenor, of
authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $25 and any integral
multiple of $25 in excess thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Corporation, the Trustee and any agent of the
Corporation or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Corporation and, by its acceptance of this Security or a
beneficial interest herein, the Holder of, and any Person that
acquires a beneficial interest in, this Security agree that for
United States federal, state and local tax purposes it is intended
that this Security constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.4. Additional Provisions Required in Global
Security.
Unless otherwise specified as contemplated by Section 3.1, any
Global Security issued hereunder shall, in addition to the
provisions contained in Sections 2.2 and 2.3, bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE 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 INDENTURE.
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SECTION 2.5. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By: ___________________________________
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and,
subject to Section 3.3, set forth or determined in the manner
provided in an Officers' Certificate or established in one or more
indentures supplemental hereto, prior to the issuance of Securities
of a series:
(a) the title of the securities of such series, which
shall distinguish the Securities of the series from all other
Securities;
(b) the limit, if any, upon the aggregate principal
amount of the Securities of such series that may be authenticated
and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series
pursuant to Section 3.4, 3.6, 3.7, 9.6 or 11.6 and except for any
Securities that, pursuant to Section 3.3, are deemed never to have
been authenticated and delivered hereunder); provided, however,
that the authorized aggregate principal amount of such series may
be increased above such amount by a Board Resolution to such
effect;
(c) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name
that security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest;
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(d) the Stated Maturity or Maturities on which the
principal of the Securities of such series is payable or the method
of determination thereof and any dates on which or circumstances
under which, the Corporation shall have the right to extend or
shorten such Stated Maturity or Maturities;
(e) the rate or rates, if any, at which the Securities
of such series shall bear interest, if any, the rate or rates and
extent to which Additional Interest, if any, shall be payable in
respect of any Securities of such series, the date or dates from
which any such interest or Additional Interest shall accrue, the
Interest Payment Dates on which such interest shall be payable, the
right, pursuant to Section 3.12 or as otherwise set forth therein,
of the Corporation to defer or extend an Interest Payment Date and
the Regular Record Date for the interest payable on any Interest
Payment Date or the method by which any of the foregoing shall be
determined;
(f) the place or places where the principal of (and
premium, if any) and interest (including any Additional Interest)
on the Securities of such series shall be payable, the place or
places where the Securities of such series may be presented for
registration of transfer or exchange, any restrictions that may be
applicable to any such transfer or exchange in addition to or in
lieu of those set forth herein and the place or places where
notices and demands to or upon the Corporation in respect of the
Securities of such series may be made;
(g) the period or periods within or the date or dates on
which, if any, the price or prices at which and the terms and
conditions upon which the Securities of such series may be
redeemed, in whole or in part, at the option of the Corporation,
and if other than by a Board Resolution, the manner in which any
election by the Corporation to redeem such Securities shall be
evidenced;
(h) the obligation or the right, if any, of the
Corporation to redeem, repay or purchase the Securities of such
series pursuant to any sinking fund, amortization or analogous
provisions, or at the option of a Holder thereof, and the period or
periods within which, the price or prices at which, the currency or
currencies (including currency unit or units) in which and the
other terms and conditions upon which Securities of the series
shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(i) the denominations in which any Securities of such
series shall be issuable, if other than denominations of $25 and
any integral multiple thereof;
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(j) if other than Dollars, the currency or currencies
(including any currency unit or units) in which the principal of
(and premium, if any) and interest and Additional Interest, if any,
on the Securities of the series shall be payable, or in which the
Securities of the series shall be denominated and the manner of
determining the equivalent thereof in Dollars for purposes of the
definition of Outstanding;
(k) the additions, modifications or deletions, if any,
in the Events of Default or covenants of the Corporation set forth
herein with respect to the Securities of such series;
(l) if other than the principal amount thereof, the
portion of the principal amount of Securities of such series that
shall be payable upon declaration of acceleration of the Maturity
thereof;
(m) if the principal amount payable at the Stated
Maturity of any Securities of the series will not be determinable
as of any one or more dates prior to the Stated Maturity, the
amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the
Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(n) the additions or changes, if any, to this Indenture
with respect to the Securities of such series as shall be necessary
to permit or facilitate the issuance of the Securities of such
series in bearer form, registrable or not registrable as to
principal, and with or without interest coupons;
(o) any index or indices used to determine the amount of
payments of principal of and premium, if any, on the Securities of
such series or the manner in which such amounts will be determined;
(p) if applicable, that any Securities of the series
shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the respective Depositaries
for such Global Securities, the form of any legend or legends that
shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.4 and any circumstances in
addition to or in lieu of those set forth in Section 3.6 in which
any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons
other than the Depositary for such Global Security or a nominee
thereof;
(q) the appointment of any Paying Agent or agents for
the Securities of such series;
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(r) the terms of any right to convert or exchange
Securities of such series into any other securities or property of
the Corporation, and the additions or changes, if any, to this
Indenture with respect to the Securities of such series to permit
or facilitate such conversion or exchange;
(s) if such Securities are to be issued to an Issuer
Trust, the form or forms of the Trust Agreement and Guarantee
Agreement relating thereto;
(t) if other than as set forth herein, the relative
degree, if any, to which the Securities of the series shall be
senior to or be subordinated to other series of Securities in right
of payment, whether such other series of Securities are Outstanding
or not;
(u) any addition to or change in the Events of Default
which applies to any Securities of the series and any change in the
right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to
Section 5.2;
(v) any addition to or change in the covenants set forth
in Article X which applies to Securities of the series; and
(w) any other terms of the Securities of such series
(which terms shall not be inconsistent with the provisions of this
Indenture, except as permitted by Section 9.1(f)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided herein or in or pursuant to such Board Resolution and set
forth, or determined in the manner provided, in such Officers'
Certificate or in any indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Corporation and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
The Securities shall be subordinated in right of payment to
Senior Debt as provided in Article XIII.
SECTION 3.2. Denominations.
The Securities of each series shall be in registered form
without coupons and shall be issuable in denominations of $25 and
any integral multiple thereof, unless otherwise specified as
contemplated by Section 3.1.
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SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Corporation
by its Chairman of the Board, its Chief Executive Officer, its
President, its Chief Financial Officer, one of its Vice Presidents
or its Treasurer, under its corporate seal reproduced or impressed
thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Corporation shall bind the Corporation, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities. At any time and
from time to time after the execution and delivery of this
Indenture, the Corporation may deliver Securities of any series
executed by the Corporation to the Trustee for authentication,
together with a Corporation Order for the authentication and
delivery of such Securities and the Trustee in accordance with the
Corporation Order shall authenticate and deliver such Securities.
If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as
permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 2.1,
that such form has been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 3.1, that such terms have been established in conformity
with the provisions of this Indenture; and
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Corporation in the
manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of
the Corporation, 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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If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the
preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver
the Officers' Certificate otherwise required pursuant to Section
3.1 or the Corporation Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by the manual signature of one of its authorized officers,
and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Corporation
and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 3.10, then for all purposes of
this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Corporation may execute, and upon Corporation Order the
Trustee shall authenticate and deliver, temporary Securities that
are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any denomination, substantially of the tenor of the
definitive Securities of such series in lieu of which they are
issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the
Corporation will cause definitive Securities of such series to be
prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the
temporary Securities at the office or agency of the Corporation
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designated for that purpose without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities,
the Corporation shall execute and the Trustee shall authenticate
and deliver in exchange therefor one or more definitive Securities
of the same series of any authorized denominations having the same
Original Issue Date and Stated Maturity and having the same terms
as such temporary Securities. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such
series.
SECTION 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be
registered in the name of the Depositary designated by the
Corporation for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (i)
such Depositary advises the Trustee in writing that such Depositary
is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Security
and the Corporation is unable to locate a qualified successor, (ii)
the Corporation executes and delivers to the Trustee a Corporation
Order stating that the Corporation elects to terminate the book-
entry system through the Depositary or (iii) there shall have
occurred and be continuing an Event of Default.
(c) If any Global Security is to be exchanged for other
Securities or cancelled in whole, it shall be surrendered by or on
behalf of the Depositary or its nominee to the Securities Registrar
for exchange or cancellation as provided in this Article III. If
any Global Security is to be exchanged for other Securities or
cancelled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security,
then either (i) such Global Security shall be so surrendered for
exchange or cancellation as provided in this Article III or (ii)
the principal amount thereof shall be reduced, subject to Section
3.5(b), or increased by an amount equal to the portion thereof to
be so exchanged or cancelled, or equal to the principal amount of
such other Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment
made on the records of the Securities Registrar, whereupon the
Trustee, in accordance with the Applicable Procedures, shall
instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security by the Depositary, accompanied by
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registration instructions, the Trustee shall, subject to Section
3.5(b) and as otherwise provided in this Article III, authenticate
and deliver any Securities issuable in exchange for such Global
Security (or any portion thereof) in accordance with the
instructions of the Depositary. The Trustee shall not be liable for
any delay in delivery of such instructions and may conclusively
rely on, and shall be fully protected in relying on, such
instructions.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this
Article III, Section 9.6 or 11.6 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a
nominee thereof.
(e) Securities distributed to holders of Book-Entry Trust
Preferred Securities (as defined in the applicable Trust Agreement)
upon the dissolution of an Issuer Trust shall be distributed in the
form of one or more Global Securities registered in the name of a
Depositary or its nominee, and deposited with the Securities
Registrar, as custodian for such Depositary, or with such
Depositary, for credit by the Depositary to the respective accounts
of the beneficial owners of the Securities represented thereby (or
such other accounts as they may direct). Securities distributed to
holders of Trust Preferred Securities other than Book-Entry Trust
Preferred Securities upon the dissolution of an Issuer Trust shall
not be issued in the form of a Global Security or any other form
intended to facilitate book-entry trading in beneficial interests
in such Securities.
(f) The Depositary or its nominee, as the registered owner of
a Global Security, shall be the Holder of such Global Security for
all purposes under this Indenture and the Securities, and owners of
beneficial interests in a Global Security shall hold such interests
pursuant to the Applicable Procedures. Accordingly, any such
owner's beneficial interest in a Global Security shall be shown
only on, and the transfer of such interest shall be effected only
through, records maintained by the Depositary or its nominee or its
Agent Members. Neither the Trustee nor the Securities Registrar
shall have any liability in respect of any transfers effected by
the Depositary.
(g) The rights of owners of beneficial interests in a Global
Security shall be exercised only through the Depositary and shall
be limited to those established by law and agreements between such
owners and the Depositary and/or its Agent Members.
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SECTION 3.6. Registration, Transfer and Exchange Generally.
The Corporation shall cause to be kept at the Corporate Trust
Office of the Trustee a register in which, subject to such
reasonable regulations as it may prescribe, the Corporation shall
provide for the registration of Securities and of transfers of
Securities. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities
Registrar" for the purpose of registering Securities and transfers
of Securities as herein provided.
Upon surrender for registration of transfer of any Security at
the offices or agencies of the Corporation designated for that
purpose the Corporation shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series of
any authorized denominations of like tenor and aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for
other Securities of the same series of any authorized
denominations, of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or
agency. Whenever any securities are so surrendered for exchange,
the Corporation shall execute, and the Trustee shall authenticate
and deliver, the Securities that the Holder making the exchange is
entitled to receive.
All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the Corporation
evidencing the same debt and guarantee thereon, and entitled to the
same benefits under this Indenture, as the Securities surrendered
upon such transfer or exchange.
Every Security presented or surrendered for transfer or
exchange shall (if so required by the Corporation or the Trustee)
be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Corporation and the Securities
Registrar, duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer
or exchange of Securities, but the Corporation may require payment
of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any transfer or exchange of
Securities.
Neither the Corporation nor the Trustee shall be required,
pursuant to the provisions of this Section, (i) to issue, register
the transfer of or exchange any Security of any series during a
period beginning at the opening of business 15 days before the day
of selection for redemption of Securities of that series pursuant
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to Article XI 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 Security so selected for redemption in
whole or in part, except, in the case of any such Security to be
redeemed in part, any portion thereof not to be redeemed.
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the Trustee
together with such security or indemnity as may be required by the
Corporation or the Trustee to save each of them harmless, the
Corporation shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series of
like tenor and aggregate principal amount, and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Corporation and to the
Trustee (i) evidence to their satisfaction of the destruction, loss
or theft of any Security and (ii) such security or indemnity as may
be required by them to save each of them and any agent of any of
them harmless, then, in the absence of notice to the Corporation or
the Trustee that such Security has been acquired by a bona fide
purchaser, the Corporation shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same
series of like tenor and aggregate principal amount as such
destroyed, lost or stolen Security, and bearing a number not
contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Corporation in
its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the
Corporation may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Corporation whether or not
the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
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SECTION 3.8. Payment of Interest and Additional Interest;
Interest Rights Preserved.
Interest and Additional Interest on any Security of any series
that is payable, and is punctually paid or duly provided for, on
any Interest Payment Date, shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest in respect of Securities of such series, except that,
unless otherwise provided in the Securities of such series,
interest and any Additional Interest payable on the Stated Maturity
of the principal of a Security shall be paid to the Person to whom
principal is paid. The initial payment of interest on any Security
of any series that is issued between a Regular Record Date and the
related Interest Payment Date shall be payable as provided in such
Security or in the Board Resolution pursuant to Section 3.1 with
respect to the related series of Securities.
Any interest on any Security that is due and payable, but is
not timely paid or duly provided for, on any Interest Payment Date
for Securities of such series (herein called "Defaulted Interest"),
shall forthwith cease to be payable to the registered Holder on the
relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Corporation, at its
election in each case, as provided in Clause (a) or (b) below:
(a) The Corporation may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series in respect of which interest is in default (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Corporation shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Corporation
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest, which shall be not more than 15
days and not less than ten days prior to the date of the proposed
payment and not less than ten days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly
notify the Corporation of such Special Record Date and, in the name
and at the expense of the Corporation, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first class, postage prepaid, to each
Holder of a Security of such series at the address of such Holder
as it appears in the Securities Register not less than ten days
prior to such Special Record Date. The Trustee may, in its
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discretion, in the name and at the expense of the Corporation,
cause a similar notice to be published at least once in a
newspaper, customarily published in the English language on each
Business Day and of general circulation in the Borough of
Manhattan, The City of New York, but such publication shall not be
a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no
longer be payable pursuant to the following Clause (b).
(b) The Corporation may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of
the series in respect of which interest is in default may be listed
and, upon such notice as may be required by such exchange (or by
the Trustee if the Securities are not listed), if, after notice
given by the Corporation to the Trustee of the proposed payment
pursuant to this Clause, such payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, that were
carried by such other Security.
SECTION 3.9. Persons Deemed Owners.
The Corporation, the Trustee and any agent of the Corporation
or the Trustee shall treat the Person in whose name any Security is
registered as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Section 3.8) any
interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the
Corporation or the Trustee nor any agent of the Corporation or the
Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security
held on its behalf by a Depositary shall have any rights under this
Indenture with respect to such Global Security, and such Depositary
may be treated by the Corporation, the Trustee and any agent of the
Corporation or the Trustee as the owner of such Global Security for
all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Corporation, the Trustee or any agent of
the Corporation or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by a
Depositary or impair, as between a Depositary and such holders of
beneficial interests, the operation of customary practices
governing the exercise of the rights of the Depositary (or its
nominee) as Holder of any Security.
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SECTION 3.10. Cancellation.
All Securities surrendered for payment, redemption, transfer
or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and
Securities surrendered directly to the Trustee for any such purpose
shall be promptly canceled by it. The Corporation may at any time
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder that the Corporation may have
acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled
as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities shall be destroyed by the
Trustee and the Trustee shall deliver to the Corporation a
certificate of such destruction.
SECTION 3.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1
for Securities of any series, interest on the Securities of each
series for any partial 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 any partial month in such period, and interest on the
Securities of each series for a full period shall be computed by
dividing the rate per annum by the number of interest periods that
together constitute a full twelve months.
SECTION 3.12. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1
with respect to the Securities of a particular series, so long as
no Event of Default has occurred and is continuing, the Corporation
shall have the right, at any time during the term of such series,
from time to time to defer the payment of interest on such
Securities for such period or periods as may be specified as
contemplated by Section 3.1 (each, an "Extension Period"), during
which Extension Periods the Corporation shall, if so specified as
contemplated by Section 3.1, have the right to make partial
payments of interest on any Interest Payment Date. No Extension
Period shall end on a date other than an Interest Payment Date. At
the end of any such Extension Period the Corporation shall pay all
interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any, at the rate specified for the
Securities of such series to the extent permitted by applicable
law); provided, however, that no Extension Period shall extend
beyond the Stated Maturity of the principal of the Securities of
such series. Prior to the termination of any such Extension
Period, the Corporation may further defer the payment of interest,
provided that no Extension Period shall exceed the period or
periods specified in such Securities, extend beyond the Stated
Maturity of the principal of such Securities or end on a date other
than an Interest Payment Date. Upon the termination of any such
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Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due on any Interest
Payment Date, the Corporation may elect to begin a new Extension
Period, subject to the above conditions. No interest or Additional
Interest shall be due and payable during an Extension Period,
except at the end thereof, but each installment of interest that
would otherwise have been due and payable during such Extension
Period shall bear Additional Interest as and to the extent as may
be specified as contemplated by Section 3.1. The Corporation shall
give the Holders of the Securities of such series and the Trustee
notice of its election to begin any such Extension Period at least
one Business Day prior to the next succeeding Interest Payment Date
on which interest on Securities of such series would be payable but
for such deferral or, with respect to any Securities of a series
issued to an Issuer Trust, so long as any such Securities are held
by such Issuer Trust, at least one Business Day prior to the
earlier of (i) the next succeeding date on which Distributions on
the Trust Preferred Securities of such Issuer Trust would be
payable but for such deferral and (ii) the date on which the
Property Trustee of such Issuer Trust is required to give notice to
any securities exchange or other applicable self-regulatory
organization or to holders of such Trust Preferred Securities of
the record date or the date such Distributions are payable.
The Trustee shall promptly give notice of the Corporation's
election to begin any such Extension Period to the Holders of the
Outstanding Securities of such series.
SECTION 3.13. Right of Set Off.
With respect to the Securities of a series initially issued to
an Issuer Trust, notwithstanding anything to the contrary herein,
the Corporation shall have the right to set off any payment it is
otherwise required to make in respect of any such Security to the
extent the Corporation has theretofore made,or is concurrently on
the date of such payment making, a payment under the Guarantee
Agreement relating to such Security or to a holder of Trust
Preferred Securities pursuant to an action undertaken under Section
5.8 of this Indenture.
SECTION 3.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the
Corporation and, by its acceptance of a Security or a beneficial
interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Security agree that for United States
federal, state and local tax purposes it is intended that such
Security constitutes indebtedness.
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SECTION 3.15. Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1
with respect to the Securities of a particular series, the
Corporation shall have the right to (i) shorten the Stated Maturity
of the principal of the Securities of such series at any time to
any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series and (ii) extend
the Stated Maturity of the principal of the Securities of such
series at any time at its election for one or more periods, but in
no event to a date later than the 49th anniversary of the first
Interest Payment Date following the Original Issue Date of the
Securities of such series; provided that, if the Company elects to
exercise its right to extend the Stated Maturity of the principal
of the Securities of such series pursuant to clause (ii), above, at
the time such election is made and at the time of extension (A) the
Company is not in bankruptcy, otherwise insolvent or in
liquidation, (B) the Company is not in default in the payment of
any interest or principal on such Securities, (C) if the Issuer
Trust has not been liquidated, such Issuer Trust is not in arrears
on payments of Distributions on the Trust Preferred Securities
issued by such Issuer Trust and no deferred Distributions are
accumulated, (D) such Securities are rated not less than BBB- by
S&P or Baa3 by Moody's or the equivalent by any other nationally
recognized statistical rating organization and (E) after such
extension, the Securities shall not have a remaining term to
maturity of more than 30 years. In the event the Company elects to
shorten or extend the Stated Maturity of the Securities of such
series, it shall give notice to the Trustee, and the Trustee shall
give notice of such shortening or extension to the Holders, not
less than 30 and not more than 60 days prior to the effectiveness
thereof.
SECTION 3.16. CUSIP Numbers.
The Corporation in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption and other similar or
related materials as a convenience to Holders; provided that any
such notice or other materials may state that no representation is
made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or other
materials and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of
such numbers.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Corporation Request, cease to be of
further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided for
and as otherwise provided in this Section 4.1) and the Trustee, on
demand of and at the expense of the Corporation, shall execute
proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(i) all Securities theretofore authenticated and
delivered (other than (i) Securities that have been
destroyed, lost or stolen and that have been replaced or
paid as provided in Section 3.7 and (ii) Securities for
whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Corporation
and thereafter repaid to the Corporation or discharged
from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered
to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year of the date of deposit, or
(C) are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Corporation,
and the Corporation, in the case of subclause (ii)(A), (B) or (C)
above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the currency or
currencies in which the Securities of such series are payable
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit (in
the case of Securities that have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
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(b) the Corporation has paid or caused to be paid, or made
provision satisfactory to the Trustee for the payment of, all other
sums payable hereunder by the Corporation; and
(c) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Corporation to the Trustee under Section
6.7, the obligations of the Trustee to any Authenticating Agent
under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (ii) of Clause (a) of this Section,
the obligations of the Trustee under Sections 3.10 and 4.2 and the
last paragraph of Section 10.3, and the obligations of the
Corporation and the Trustee under Sections 3.5, 3.6, 3.10 and 9.6,
shall survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.1
shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the
Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest (including any Additional Interest)
for the payment of which such money or obligations have been
deposited with or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default," wherever used herein with respect to the
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body) except as may be specified pursuant to Section 3.1:
(a) default in the payment of any interest upon any
Security of that series, including any Additional Interest in
respect thereof, when it becomes due and payable, and continuance
of such default for a period of 30 days (subject to the deferral of
any due date in the case of an Extension Period); or
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(b) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity;
or
(c) failure on the part of the Corporation duly to
observe or perform any other of the covenants or agreements on the
part of the Corporation in the Securities of that series or in this
Indenture for a period of 90 days after the date on which written
notice of such failure, requiring the Corporation to remedy the
same, shall have been give to the Corporation by the Trustee by
registered or certified mail or to the Corporation and the Trustee
by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series; or
(d) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Corporation a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization of the Corporation under the Bankruptcy Code or any
other similar applicable federal or state law, which decree or
order shall have continued undischarged and unstayed for a period
of 60 days; or the entry of a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of
the Corporation or of its property, or for the winding up or
liquidation of its affairs, which decree or order shall have
continued undischarged and unstayed for a period of 60 days; or
(e) the commencement by the Corporation of voluntary
proceedings to be adjudicated a bankrupt, or consent by the
Corporation to the filing of a bankruptcy proceeding against it, or
the filing by the Corporation of a petition or answer or consent
seeking reorganization under the Bankruptcy Code or any other
similar federal or state law, or consent by the Corporation to the
filing of any such petition, or the consent by the Corporation to
the appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of it or of its property, or the making
by the Corporation of an assignment for the benefit of creditors,
or the admission by the Corporation in writing of its inability to
pay its debts generally as they become due; or
(f) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.2. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.1(d) or 5.1(e)) with respect to Securities
of any series at the time Outstanding occurs and is continuing,
then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if
the Securities of that series are Discount Securities, such portion
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of the principal amount as may be specified in the terms of that
series) of all the Securities of that series to be due and payable
immediately, by a notice in writing to the Corporation (and to the
Trustee if given by Holders), provided that, in the case of the
Securities of a series issued to an Issuer Trust, if, upon an Event
of Default, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of such series fail
to declare the principal of all the Outstanding Securities of such
series to be immediately due and payable, the holders of at least
25% in aggregate Liquidation Amount (as defined in the related
Trust Agreement) of the related series of Trust Preferred
Securities issued by such Issuer Trust then outstanding shall have
the right to make such declaration by a notice in writing to the
Corporation and the Trustee; and upon any such declaration such
principal amount (or specified portion thereof) of and the accrued
interest (including any Additional Interest) on all the Securities
of such series shall become immediately due and payable. If an
Event of Default specified in Section 5.1(d) or 5.1(e) with respect
to Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of such series (or, if the
Securities of such series are Discount Securities, such portion of
the principal amount of such Securities as may be specified by the
terms of that series) shall automatically, and without any
declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable. Payment of principal
and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIII
notwithstanding that such amount shall become immediately due and
payable as herein provided.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders
of a majority in aggregate principal amount of the Outstanding
Securities of that series, by written notice to the Corporation and
the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Corporation has paid or deposited with the
Trustee a sum sufficient to pay:
(i) all overdue installments of interest on all
Securities of such series,
(ii) any accrued Additional Interest on all
Securities of such series,
(iii) the principal of (and premium, if any, on)
any Securities of such series that have become due
otherwise than by such declaration of acceleration and
interest and Additional Interest thereon at the rate
borne by the Securities, and
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(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(b) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of
Securities of that series that has become due solely by such
acceleration, have been cured or waived as provided in Section
5.13.
In the case of Securities of a series initially issued to an
Issuer Trust, if the Holders of such Securities fail to annul such
declaration and waive such default, the holders of a majority in
aggregate Liquidation Amount (as defined in the related Trust
Agreement) of the related series of Trust Preferred Securities
issued by such Issuer Trust then outstanding shall also have the
right to rescind and annul such declaration and its consequences by
written notice to the Corporation and the Trustee, subject to the
satisfaction of the conditions set forth in Clauses (a) and (b)
above of this Section 5.2.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for
Enforcement by
Trustee.
The Corporation covenants that if:
(a) default is made in the payment of any installment of
interest (including any Additional Interest) on any Security of any
series when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of
(and premium, if any, on) any Security at the Maturity thereof, the
Corporation will, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal, including
any sinking fund payment or analogous obligations (and premium, if
any) and interest (including any Additional Interest), and, in
addition thereto, all amounts owing the Trustee under Section 6.7.
If the Corporation fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same
against the Corporation or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Corporation or
any other obligor upon the Securities, wherever situated.
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If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Corporation (or any other
obligor upon the Securities), or the property of the Corporation or
of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal
of the Securities of any series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the
Corporation for the payment of overdue principal (and premium, if
any) or interest (including any Additional Interest)) shall be
entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount
of principal (and premium, if any) and interest
(including any Additional Interest) owing and unpaid in
respect to the Securities and to file such other papers
or documents as may be necessary or advisable and to take
any and all actions as are authorized under the Trust
Indenture Act in order to have the claims of the Holders
and any predecessor to the Trustee under Section 6.7
allowed in any such judicial proceedings; and
(ii) in particular, the Trustee shall be authorized
to collect and receive any moneys or other property
payable or deliverable on any such claims and to
distribute the same in accordance with Section 5.6; and
(b) 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 Trustee for distribution in accordance with
Section 5.6, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the
Trustee any amount due to it and any predecessor Trustee under
Section 6.7.
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Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding; provided, however, that
the Trustee may, on behalf of the Holders, vote for the election of
a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
SECTION 5.5. Trustee May Enforce Claim Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
subject to Article XIII and after provision for the payment of all
the amounts owing the Trustee and any predecessor Trustee under
Section 6.7, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has
been recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the
Trustee with respect to a series of Securities pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such
money or property on account of principal (or premium, if any) or
interest (including any Additional Interest), upon presentation of
the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and
any predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the
amounts then due and unpaid upon Securities of such series for
principal (and premium, if any) and interest (including any
Additional Interest) in respect of which or for the benefit of
which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts
due and payable on such series of Securities for principal
(and premium, if any) and interest (including any Additional
Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
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SECTION 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities of any
series shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture or for the appointment
of a receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(b) the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing itself of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders of
Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest; Direct Action by Holders of Trust
Preferred Securities.
Notwithstanding any other provision in this Indenture, the
Holder of any Security of any series shall have the right, which is
absolute and unconditional, to receive payment of the principal of
(and premium, if any) and (subject to Sections 3.8 and 3.12)
interest (including any Additional Interest) on such Security on
the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder. In the case of
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Securities of a series issued to an Issuer Trust, any registered
holder of the series of Trust Preferred Securities issued by such
Issuer Trust shall have the right, upon the occurrence of an Event
of Default described in Section 5.1(a) or 5.1(b), to institute a
suit directly against the Corporation for enforcement of payment to
such holder of principal of (premium, if any) and (subject to
Sections 3.8 and 3.12) interest (including any Additional Interest)
on the Securities having a principal amount equal to the aggregate
Liquidation Amount (as defined in the related Trust Agreement) of
such Trust Preferred Securities held by such holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Trust Preferred
Securities issued by any Issuer Trust has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee, such Holder or such
holder of Trust Preferred Securities, then and in every such case
the Corporation, Trustee, such Holders and such holder of Trust
Preferred Securities shall, subject to any determination in such
proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the
Trustee, such Holder and such holder of Trust Preferred Securities
shall continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section
3.7, no right or remedy herein conferred upon or reserved to the
Trustee or the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right
or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any
Security with respect to the Securities of the related series or
any holder of any Trust Preferred Security to exercise any right or
remedy accruing upon any Event of Default with respect to the
Securities of the related series shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders and the right and remedy given to the
holders of Trust Preferred Securities by Section 5.8 may be
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exercised from time to time, and as often as may be deemed
expedient, by the Trustee, the Holders or the holders of Trust
Preferred Securities, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
(a) such direction shall not be in conflict with any
rule of law or with this Indenture,
(b) the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the
Trustee shall have the right to decline to follow such direction if
a Responsible Officer or Officers of the Trustee shall, in good
faith, determine that the proceeding so directed would be unjustly
prejudicial to the Holders not joining in any such direction or
would involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series affected thereby
and, in the case of any Securities of a series initially issued to
an Issuer Trust, the holders of a majority in aggregate Liquidation
Amount (as defined in the related Trust Agreement) of the Trust
Preferred Securities issued by such Issuer Trust may waive any past
default hereunder and its consequences with respect to such series
except a default:
(a) in the payment of the principal of (or premium, if
any) or interest (including any Additional Interest) on any
Security of such series (unless such default has been cured and the
Corporation has paid to or deposited with the Trustee a sum
sufficient to pay all matured installments of interest (including
any Additional Interest) and all principal of (and premium, if any,
on) all Securities of that series due otherwise than by
acceleration), or
(b) in respect of a covenant or provision hereof that
under Article IX cannot be modified or amended without the consent
of each Holder of any Outstanding Security of such series affected.
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Any such waiver shall be deemed to be on behalf of the Holders
of all the Securities of such series or, in the case of a waiver by
holders of Trust Preferred Securities issued by such Issuer Trust,
by all holders of Trust Preferred Securities issued by such Issuer
Trust.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the
aggregate more than ten percent in aggregate principal amount of
the Outstanding Securities of any series, or to any suit instituted
by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest (including any Additional
Interest) on any Security on or after the respective Stated
Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Corporation covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of,
any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Corporation (to the extent
that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
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ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default,
(i) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions that by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture.
(b) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his
or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct except that
(i) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good
faith in accordance with the direction of Holders
pursuant to Section 5.12 relating to the time, method and
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place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture
with respect to the Securities of a series.
(d) No provision of this Indenture shall require the
Trustee 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
there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer
of the Trustee of the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit
by mail to all Holders of Securities of such series, as their names
and addresses appear in the Securities Register, notice of such
default, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series,
the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in
the interests of the Holders of Securities of such series; and
provided, further, that, in the case of any default of the
character specified in Section 5.1(c), no such notice to Holders of
Securities of such series shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the
term "default" means any event that is, or after notice or lapse of
time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
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(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, Security 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) any request or direction of the Corporation
mentioned herein shall be sufficiently evidenced by a Corporation
Request or Corporation Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice
of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, indenture, Security or
other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such inquiry
or investigation, it shall be entitled to examine the books,
records and premises of the Corporation, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 6.4. Not Responsible for Recitals or Issuance of
Securities.
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The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the
statements of the Corporation and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Corporation of the
Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Securities Registrar or any other agent of the Corporation in its
individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Sections 6.8 and 6.13, may otherwise
deal with the Corporation with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Corporation.
SECTION 6.7. Compensation and Reimbursement.
The Corporation agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in such
amounts as the Corporation and the Trustee shall agree 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) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(c) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel) incurred without negligence or bad faith,
arising out of or in connection with the acceptance or
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administration of this trust or the performance of its duties
hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. This
indemnification shall survive the termination of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.1(d) or 5.1(e) occurs, the
expenses and the compensation for the services are intended to
constitute expenses of administration under the Bankruptcy Reform
Act of 1978 or any successor statute.
SECTION 6.8. Disqualification; Conflicting Interests.
(a) The Trustee for the Securities of any series issued
hereunder shall be subject to the provisions of Section 310(b) of
the Trust Indenture Act. Nothing herein shall prevent the Trustee
from filing with the Commission the application referred to in the
second to last paragraph of said Section 310(b).
(b) The Trust Agreement and the Guarantee Agreement with
respect to each Issuer Trust shall be deemed to be specifically
described in this Indenture for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture
Act.
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be:
(a) a corporation organized and doing business under the
laws of the United States of America or of any State or Territory
or the District of Columbia, authorized under such laws to exercise
corporate trust powers and subject to supervision or examination by
federal, state, territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing
business under the laws of a foreign government that is permitted
to act as Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of
such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable
to United States institutional trustees, in either case having a
combined capital and surplus of at least $50,000,000, subject to
supervision or examination by federal or state authority. If such
corporation or other Person publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this
Section 6.9, the combined capital and surplus of such corporation
or other Person shall be deemed to be its combined capital and
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surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.9, it shall resign
immediately in the manner and with the effect hereinafter specified
in this Article VI. Neither the Corporation nor any Person directly
or indirectly controlling, controlled by or under common control
with the Corporation shall serve as Trustee for the Securities of
any series issued hereunder.
SECTION 6.10. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article VI
shall become effective until the acceptance of appointment by the
successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice
thereof to the Corporation. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Corporation.
(d) If at any time:
(i) the Trustee shall fail to comply with Section
6.8 after written request therefor by the Corporation or
by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(ii) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written
request therefor by the Corporation or by any such
Holder, or
(iii) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or
liquidation,
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then, any such case, (A) the Corporation, acting pursuant to the
authority of a Board Resolution, may remove the Trustee with
respect to the Securities of all series issued hereunder or (B)
subject to Section 5.14, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of such Holder
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to the
Securities of all series issued hereunder and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause with respect to the Securities of one or more
series, the Corporation, by a Board Resolution, shall promptly
appoint a successor Trustee with respect to the Securities of that
or those series. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series
shall be appointed by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such series
delivered to the Corporation and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to
the Securities of such series and supersede the successor Trustee
appointed by the Corporation. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the
Corporation or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, subject to
Section 5.14, on behalf of such Holder and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities
of such series.
(f) The Corporation shall give notice of each
resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid,
to the Holders of Securities of such series as their names and
addresses appear in the Securities Register. Each notice shall
include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the
Corporation and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee,
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without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Corporation or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Corporation, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring
Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee and (iii) shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Corporation or any
successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee and the
Corporation shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Trustee
all rights, powers and trusts referred to in Clause (a) or (b) of
this Section, as the case may be.
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(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall
be qualified and eligible under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated, and in
case any Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in
the name of any predecessor Trustee or in the name of such
successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided
anywhere in the Securities or in this Indenture that the
certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against
Corporation.
If and when the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Corporation
(or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of Sections 311(a) and 311(b) of the
Trust Indenture Act.
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities, which shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent. Each Authenticating Agent shall
be acceptable to the Corporation and shall at all times be a
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corporation organized and doing business under the laws of the
United States of America or of any state or territory thereof or
the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by
federal or state authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately in
the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any
corporation succeeding to all or substantially all of the corporate
trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be
otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Corporation. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent
and to the Corporation. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent, which shall be acceptable to the Corporation
and shall give notice of such appointment in the manner provided in
Section 1.6 to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for
such payments, subject to the provisions of Section 6.7.
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If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities of the series designated therein
referred to in the within mentioned Indenture.
Dated:
As Trustee
By:
____________________________________
As
Authenticating Agent
By:
_____________________________________
Authorized Officer
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND CORPORATION
SECTION 7.1. Corporation to Furnish Trustee Names and
Addresses of Holders.
The Corporation will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, on or before June 30 and December 31
of each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of a date not
more than 15 days prior to the delivery thereof, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Corporation of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished, in each
case to the extent such information is in the possession or control
of the Corporation and has not otherwise been received by the
Trustee in its capacity as Securities Registrar.
SECTION 7.2. Preservation of Information, Communications to
Holders.
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(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 7.1 and the names and addresses of Holders
received by the Trustee in its capacity as Securities Registrar.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under
the Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided in Section 312(b) of the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Corporation and the Trustee that none of
the Corporation nor the Trustee nor any agent of any of them shall
be held accountable by reason of the disclosure of information as
to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may
be required pursuant to Section 313 of the Trust Indenture Act, at
the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated
intervals of not more than 12 months shall be transmitted no later
than January 31 in each calendar year.
(c) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
securities exchange upon which any Securities are listed and also
with the Commission. The Corporation will notify the Trustee when
any Securities are listed on any securities exchange.
SECTION 7.4. Reports by Corporation.
The Corporation shall file with the Trustee and with the
Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided in the Trust Indenture Act; provided that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act shall be filed with the Trustee within 15 days after the same
is required to be filed with the Commission. The Corporation also
shall comply with the other provisions of Trust Indenture Act
Section 314(a).
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Corporation May Consolidate, Etc., Only on
Certain Terms.
The Corporation shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Corporation or convey, transfer
or lease its properties and assets substantially as an entirety to
the Corporation, unless:
(a) if the Corporation shall consolidate with or merge
into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Corporation
formed by such consolidation or into which the corporation is
merged or the Person that acquires by conveyance or transfer, or
that leases, the properties and assets of the Corporation
substantially as an entirety shall be a corporation, partnership or
trust organized and existing under the laws of the United States of
America or any State or Territory thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, expressly assume the due and punctual payment of
the principal of (and premium, if any) and interest (including any
Additional Interest) on all the Securities of every series and the
performance of every covenant of this Indenture on the part of the
Corporation to be performed or observed;
(b) immediately after giving effect to such transaction,
no Event of Default, and no event that, after notice or lapse of
time, or both, would constitute an Event of Default, shall have
happened and be continuing; and
(c) the Corporation has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and any
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee, subject to
Section 6.1, may rely upon such Officers' Certificate and Opinion
of Counsel as conclusive evidence that such transaction complies
with this Section 8.1.
SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Corporation, as the
case may be, with or into any other Person, or any conveyance,
transfer or lease by the Corporation of its properties and assets
substantially as an entirety to any Person in accordance with
Section 8.1, the successor corporation formed by such consolidation
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or into which the Corporation is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the
Corporation under this Indenture with the same effect as if such
successor Person had been named as the Corporation herein; and in
the event of any such conveyance, transfer or lease the Corporation
shall be discharged from all obligations and covenants under this
Indenture and the Securities.
Such successor Person may cause to be executed, and may issue
either in its own name or in the name of the Corporation, any or
all of the Securities issuable hereunder that theretofore shall not
have been signed by the Corporation and delivered to the Trustee;
and, upon the order of such successor Person instead of the
Corporation and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities that previously shall
have been signed and delivered by the officers of the Corporation
to the Trustee for authentication pursuant to such provisions and
any Securities that such successor Person thereafter shall cause to
be executed and delivered to the Trustee on its behalf for the
purpose pursuant to such provisions. All the Securities so issued
shall in all respects have the same legal rank and benefit under
this Indenture as the Securities theretofore or thereafter issued
in accordance with the terms of this Indenture.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the
Securities thereafter to be issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders, the Corporation, when
authorized by Board Resolutions, and the Trustee, at any time and
from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(a) to evidence the succession of another Person to the
Corporation and the assumption by any such successor of the
covenants of the Corporation herein and in the Securities
contained; or
(b) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon the Corporation; or
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(c) to provide for the issuance of and establish the
form or terms of Securities of any series as permitted by Sections
2.1 or 3.1; or
(d) to add to the covenants of the Corporation for the
benefit of the Holders of all or any series of Securities (and if
such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of the series specified) or to
surrender any right or power herein conferred upon the Corporation;
or
(e) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if
such additional Events of Default are to be for the benefit of less
than all series of Securities, stating that such additional Events
of Default are expressly being included solely for the benefit of
the series specified); or
(f) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall (i)
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental
indenture that is entitled to the benefit of such provision or (ii)
not apply to any Outstanding Securities; or
(g) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided that such action pursuant to this Clause (g) shall not
adversely affect the interest of the Holders of Securities of any
series in any material respect or, in the case of the Securities of
a series issued to an Issuer Trust and for so long as any of the
corresponding series of Trust Preferred Securities issued by such
Issuer Trust shall remain outstanding, the holders of such Trust
Preferred Securities; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b);
or
(i) to comply with the requirements of the Commission in
order to effect or maintain qualification of this Indenture under
the Trust Indenture Act.
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SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each
series affected by such supplemental indenture, by Act of said
Holders delivered to the Corporation and the Trustee, the
Corporation, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of
such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of
each Outstanding Security of each series affected thereby,
(a) change the Stated Maturity of the principal of, or
any installment of interest (including any Additional Interest) on,
any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of principal of a Discount Security
that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.2, or change the place
of payment where, or the coin or currency in which, any Security or
interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(b) reduce the percentage in aggregate principal amount
of the Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture,
or
(c) modify any of the provisions of this Section,
Section 5.13 or Section 10.5, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Security affected thereby; provided, further, that,
in the case of the Securities of a series issued to an Issuer
Trust, so long as any of the corresponding series of Trust
Preferred Securities issued by such Issuer Trust remains
outstanding, (i) no such amendment shall be made that adversely
affects the holders of such Trust Preferred Securities in any
material respect, and no termination of this Indenture shall occur,
and no waiver of any Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior
consent of the holders of at least a majority of the aggregate
Liquidation Amount (as defined in the related Trust Agreement) of
such Trust Preferred Securities then outstanding unless and until
the principal of (and premium, if any, on) the Securities of such
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series and all accrued and (subject to Section 3.8) unpaid interest
(including any Additional Interest) thereon have been paid in full
and (ii) no amendment shall be made to Section 5.8 of this
Indenture that would impair the rights of the holders of Trust
Preferred Securities issued by any Issuer Trust provided therein
without the prior consent of the holders of each such Trust
Preferred Security then outstanding unless and until the principal
of (and premium, if any, on) the Securities of such series and all
accrued and (subject to Section 3.12) unpaid interest (including
any Additional Interest) thereon have been paid in full.
A supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture that has expressly
been included solely for the benefit of one or more particular
series of Securities or any corresponding series of Trust Preferred
Securities of an Issuer Trust that holds the Securities of any
series, or that modifies the rights of the Holders of Securities of
such series or holders of such Trust Preferred Securities of such
corresponding series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or
holders of Trust Preferred Securities of any other such
corresponding series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture, and that all conditions precedent herein provided for
relating to such action have been complied with. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound
thereby.
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SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION 9.6. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall
if required by the Corporation, bear a notation in form approved by
the Corporation as to any matter provided for in such supplemental
indenture. If the Corporation shall so determine, new Securities of
any series so modified as to conform, in the opinion of the
Corporation, to any such supplemental indenture may be prepared and
executed by the Corporation and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Corporation covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest (including any
Additional Interest) on the Securities of that series in accordance
with the terms of such Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Corporation will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Corporation in respect of the Securities of that series and this
Indenture may be served. The Corporation initially appoints the
Trustee, acting through its Corporate Trust Office, as its agent
for said purposes. The Corporation will give prompt written notice
to the Trustee of any change in the location of any such office or
agency. If at any time the Corporation shall fail to maintain such
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee, and the Corporation hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and
demands.
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The Corporation may also from time to time designate one or
more other offices or agencies where the Securities may be
presented or surrendered for any or all of such purposes, and may
from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve
the Corporation of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such
purposes. The Corporation will give prompt written notice to the
Trustee of any such designation and any change in the location of
any such office or agency.
SECTION 10.3. Money for Security Payments to be Held in
Trust.
If the Corporation shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or
before each due date of the principal of (and premium, if any, on)
or interest on any of the Securities of such series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify
the Trustee of its failure so to act.
Whenever the Corporation shall have one or more Paying Agents,
it will, prior to 10:00 a.m., New York City time, on each due date
of the principal of (or premium, if any) or interest (including any
Additional Interest) on any Securities, deposit with a Paying Agent
a sum sufficient to pay the principal (and premium, if any) or
interest (including any Additional Interest) so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to
such principal (and premium, if any) or interest (including any
Additional Interest), and (unless such Paying Agent is the Trustee)
the Corporation will promptly notify the Trustee of its failure so
to act.
The Corporation will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest (including any
Additional Interest) on the Securities of a series in trust for the
benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the
Corporation (or any other obligor upon such Securities) in the
making of any payment of principal (and premium, if any) or
interest (including any Additional Interest) in respect of any
Security of any Series;
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(c) at any time during the continuance of any default
with respect to a series of Securities, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent with respect to such series; and
(d) comply with the provisions of the Trust Indenture
Act applicable to it as a Paying Agent.
The Corporation may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Corporation Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Corporation or
such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the
Corporation or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Corporation in trust for the payment of the
principal of (and premium, if any) or interest (including any
Additional Interest) on any Security and remaining unclaimed for
two years after such principal (and premium, if any) or interest
has become due and payable shall (unless otherwise required by
mandatory provision of applicable escheat or abandoned or unclaimed
property law) be paid on Corporation Request to the Corporation, or
(if then held by the Corporation) shall (unless otherwise required
by mandatory provision of applicable escheat or abandoned or
unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Corporation for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Corporation as trustee
thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such
repayment, may at the expense of the Corporation cause to be
published once, in a newspaper published in the English language,
customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Corporation.
SECTION 10.4. Statement as to Compliance.
The Corporation shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Corporation ending after
the date hereof, an Officers' Certificate covering the preceding
calendar year, stating whether or not to the best knowledge of the
signers thereof the Corporation is in default in the performance,
observance or fulfillment of or compliance with any of the terms,
provisions, covenants and conditions of this Indenture, and if the
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Corporation shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge. For
the purpose of this Section 10.4, compliance shall be determined
without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
Subject to the rights of holders of Trust Preferred Securities
specified in Section 9.2, if any, the Corporation may omit in any
particular instance to comply with any covenant or condition
provided pursuant to Section 3.1, 9.1(d) or 9.1(e) with respect to
the Securities of any series, if before or after the time for such
compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of
the Corporation in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 10.6. Additional Sums.
In the case of the Securities of a series initially issued to
an Issuer Trust, so long as no Event of Default has occurred and is
continuing and except as otherwise specified as contemplated by
Section 2.1 or Section 3.1, if (i) an Issuer Trust is the Holder of
all of the Outstanding Securities of such series and (ii) a Tax
Event has occurred and is continuing in respect of such Issuer
Trust, the Corporation shall pay to such Issuer Trust (and its
permitted successors or assigns under the related Trust Agreement)
for so long as such Issuer Trust (or its permitted successor or
assignee) is the registered holder of the Outstanding Securities of
such series, such additional sums as may be necessary in order that
the amount of Distributions (including any Additional Amounts (as
defined in such Trust Agreement)) then due and payable by such
Issuer Trust on the related Trust Preferred Securities and Common
Securities that at any time remain outstanding in accordance with
the terms thereof shall not be reduced as a result of any
Additional Taxes arising from such Tax Event (the "Additional
Sums"). Whenever in this Indenture or the Securities there is a
reference in any context to the payment of principal of or interest
on the Securities, such mention shall be deemed to include mention
of the payments of the Additional Sums provided for in this
paragraph to the extent that, in such context, Additional Sums are,
were or would be payable in respect thereof pursuant to the
provisions of this paragraph and express mention of the payment of
Additional Sums (if applicable) in any provisions hereof shall not
be construed as excluding Additional Sums in those provisions
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hereof where such express mention is not made; provided, however,
that the deferral of the payment of interest pursuant to Section
3.12 or the Securities shall not defer the payment of any
Additional Sums that may be due and payable.
SECTION 10.7. Additional Covenants.
The Corporation covenants and agrees with each Holder of
Securities of each series that it shall not (i) declare or pay any
dividends or distributions on, or redeem purchase, acquire or make
a liquidation payment with respect to, any shares of the
Corporation's capital stock or (ii) make any payment of principal
of or interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Corporation (including other
Securities) that rank pari passu in all respects with or junior in
interest to the Securities of such series (other than (a)
repurchases, redemptions or other acquisitions of shares of capital
stock of the Corporation in connection with any employment
contract, benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance
of capital stock of the Corporation (or securities convertible into
or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable
Extension Period, (b) as a result of an exchange or conversion of
any class or series of the Corporation's capital stock (or any
capital stock of a Subsidiary of the Corporation for any class or
series of the Corporation's capital stock or of any class or series
of the Corporation's indebtedness for any class or series of the
Corporation's capital stock, (c) the purchase of fractional
interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a
dividend in connection with any Rights Plan, or the issuance of
rights, stock or other property under any Rights Plan, or the
redemption or repurchase of rights pursuant thereto or (e) any
dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior
to such stock) if at such time (1) there shall have occurred any
event of which the Corporation has actual knowledge that with the
giving of notice or the lapse of time, or both, would constitute an
Event of Default with respect to the Securities of such series, and
which the Corporation shall not have taken reasonable steps to
cure, (2) if the Securities of such series are held by an Issuer
Trust or the Corporation shall be in default with respect to its
payment of any obligations under the Guarantee Agreement relating
to the Trust Preferred Securities issued by such Issuer Trust or
(3) the Corporation shall have given notice of its election to
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begin an Extension Period with respect to the Securities of such
series as provided herein and shall not have rescinded such notice,
or such Extension Period, or any extension thereof, shall be
continuing.
The Corporation also covenants with each Holder of Securities
of a series issued to an Issuer Trust (i) to hold, directly or
indirectly, 100% of the Common Securities of such Issuer Trust,
provided that any permitted successor of the Corporation hereunder
may succeed to the Corporation's ownership of such Common
Securities, (ii) as holder of such Common Securities, not to
voluntarily terminate, wind-up or liquidate such Issuer Trust,
other than (a) in connection with a distribution of the Securities
of such series to the holders of the related Trust Preferred
Securities in liquidation of such Issuer Trust or (b) in connection
with certain mergers, consolidations or amalgamations permitted by
the related Trust Agreement and (iii) to use its reasonable
efforts, consistent with the terms and provisions of such Trust
Agreement, to cause such Issuer Trust to continue not to be taxable
as a corporation for United States federal income tax purposes.
SECTION 10.8. Original Issue Discount.
For each year during which any Securities that were issued
with original issue discount are Outstanding, the Corporation shall
furnish to each Paying Agent in a timely fashion such information
as may be reasonably requested by each Paying Agent in order that
each Paying Agent may prepare the information which it is required
to report for such year on Internal Revenue Service Forms 1096 and
1099 pursuant to Section 6049 of the Internal Revenue Code of 1986,
as amended. Such information shall include the amount of original
issue discount includible in income for each increment of principal
amount at Stated Maturity of outstanding Securities during such
year.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of This Article.
Redemption of Securities of any series (whether by operation
of a sinking fund or otherwise) as permitted or required by any
form of Security issued pursuant to this Indenture shall be made in
accordance with such form of Security and this Article; provided,
however, that if any provision of any such form of Security shall
conflict with any provision of this Article, the provision of such
form of Security shall govern. Except as otherwise set forth in the
form of Security for such series, each Security of a series shall
be subject to partial redemption only in the minimum specified
denomination for the Securities of such series or any integral
multiples thereof.
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SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Corporation to redeem any Securities shall
be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Corporation, the Corporation
shall, at least 45 days prior to the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee), notify the
Trustee and, in the case of Securities of a series held by an
Issuer Trust, the Property Trustee under the related Trust
Agreement, of such date and of the principal amount of Securities
of the applicable series to be redeemed and provide the additional
information required to be included in the notice or notices
contemplated by Section 11.4; provided that in the case of any
series of Securities initially issued to an Issuer Trust, for so
long as such Securities are held by such Issuer Trust, such notice
shall be given not less than 45 nor more than 75 days prior to such
Redemption Date (unless a shorter notice shall be satisfactory to
the Property Trustee under the related Trust Agreement). In the
case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities, the Corporation shall furnish the Trustee with an
Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of
any Security of such series, provided that the unredeemed portion
of the principal amount of any Security shall be in an authorized
denomination (which shall not be less than the minimum authorized
denomination) for such Security.
The Trustee shall promptly notify the Corporation in writing
of the Securities selected for partial redemption and the principal
amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security that has been or is to be
redeemed.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not later than the thirtieth day, and not
earlier than the sixtieth day, prior to the Redemption Date, to
each Holder of Securities to be redeemed, at the address of such
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Holder as it appears in the Securities Register, provided that in
the case of any series of Securities initially issued to an Issuer
Trust, for so long as such Securities are held by such Issuer
Trust, such notice shall be given not less than 45 nor more than 75
days prior to such Redemption Date (unless a shorter notice shall
be satisfactory to the Property Trustee under the related Trust
Agreement).
With respect to Securities of each series to be redeemed, each
notice
of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or, if the Redemption Price
cannot be calculated prior to the time the notice is required to be
sent, the 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);
(c) if less than all Outstanding Securities of such
particular series are to be redeemed, the identification (and, in
the case of partial redemption, the respective principal amounts)
of the particular Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price
will become due and payable upon each such Security or portion
thereof, and that interest (including any Additional Interest)
thereon, if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(f) that the redemption is for a sinking fund, if such
is the case;
(g) such other provisions as may be required in respect
of the terms of a particular series of Securities.
Notice of redemption of Securities to be redeemed at the
election of the Corporation shall be given by the Corporation or,
at the Corporation's request, by the Trustee in the name and at the
expense of the Corporation and shall be irrevocable. The notice if
mailed in the manner provided above shall be conclusively presumed
to have been duly given, whether or not the Holder receives such
notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security.
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SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption
Date specified in the notice of redemption given as provided in
Section 11.4, the Corporation will deposit with the Trustee or with
one or more Paying Agents (or if the Corporation is acting as its
own Paying Agent, the Corporation will segregate and hold in trust
as provided in Section 10.3) an amount of money sufficient to pay
the Redemption Price of, and any accrued interest (including any
Additional Interest) on, all the Securities (or portions thereof)
that are to be redeemed on that date.
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in
Section 11.4, the Securities or portion of Securities with respect
to which such notice has been given shall become due and payable on
the date and at the place or places stated in such notice at the
applicable Redemption Price, together with accrued interest
(including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment
in said notice specified, the said Securities or the specified
portions thereof shall be paid and redeemed by the Corporation at
the applicable Redemption Price, together with accrued interest
(including any Additional Interest) to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated
by Section 3.1, installments of interest (including any Additional
Interest) whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of
business on the relevant record dates according to their terms and
the provisions of Section 3.8.
Upon presentation of any Security redeemed in part only, the
Corporation shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Corporation,
a new Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the
unredeemed portion of the Security so presented and having the same
Original Issue Date, Stated Maturity and terms.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal of and
premium, if any, on such Security shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 11.7. Right of Redemption of Securities Initially
Issued to an Issuer Trust.
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In the case of the Securities of a series initially issued to
an Issuer Trust, except as otherwise specified as contemplated by
Section 3.1, the Corporation, at its option, may redeem such
Securities (i) on or after the date specified in such Security, in
whole at any time or in part from time to time or (ii) upon the
occurrence and during the continuation of a Tax Event at any time
within 90 days following the occurrence and during the continuation
of such Tax Event, in whole (but not in part), in each case at a
Redemption Price of 100% unless specified in such Security,
together with accrued interest (including any Additional Interest)
to the Redemption Date.
If less than all the Securities of any such series are to be
redeemed, the aggregate principal amount of such Securities
remaining Outstanding after giving effect to such redemption shall
be sufficient to satisfy any provisions of the Trust Agreement
related to the Issuer Trust to which such Securities were issued,
including any requirement in such Trust Agreement as to the minimum
Liquidation Amount (as defined in such Trust Agreement) of Trust
Preferred Securities that may be held by a holder of Trust
Preferred Securities thereunder.
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of any series except
as otherwise specified as contemplated by Section 3.1 for such
Securities.
The minimum amount of any sinking fund payment provided for by
the terms of any Securities of any series is herein referred to as
a "mandatory sinking fund payment," and any sinking fund payment in
excess of such minimum amount that is permitted to be made by the
terms of such Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of
any Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.2.
Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of such
Securities.
SECTION 12.2. Satisfaction of Sinking Fund Payments with
Securities.
In lieu of making all or any part of a mandatory sinking fund
payment with respect to any Securities of a series in cash, the
Corporation may at its option, at any time no more than 16 months
and no less than 45 days prior to the date on which such sinking
fund payment is due, deliver to the Trustee Securities of such
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series (together with the unmatured coupons, if any, appertaining
thereto) theretofore purchased or otherwise acquired by the
Corporation, except Securities of such series that have been
redeemed through the application of mandatory or optional sinking
fund payments pursuant to the terms of the Securities of such
series, accompanied by a Corporation Order instructing the Trustee
to credit such obligations and stating that the Securities of such
series were originally issued by the Corporation by way of bona
fide sale or other negotiation for value; provided that the
Securities to be so credited have not been previously so credited.
The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the Redemption Price for such
Securities, as specified in the Securities so to be redeemed, for
redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for any series of Securities, the Corporation will deliver to the
Trustee an Officers' Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the
terms of such Securities, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant
to Section 3.1) and the portion thereof, if any, that is to be
satisfied by delivering and crediting Securities pursuant to
Section 12.2 and will also deliver (to the extent not previously
delivered) to the Trustee any Securities to be so delivered. Such
Officers' Certificate shall be irrevocable and upon its delivery
the Corporation shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the succeeding
sinking fund payment date. In the case of the failure of the
Corporation to deliver such Officers' Certificate (or, as required
by this Indenture, the Securities and coupons, if any, specified in
such Officers' Certificate) by the due date therefor, the sinking
fund payment due on the succeeding sinking fund payment date for
such series shall be paid entirely in cash and shall be sufficient
to redeem the principal amount of the Securities of such series
subject to a mandatory sinking fund payment without the right to
deliver or credit securities as provided in Section 12.2 and
without the right to make the optional sinking fund payment with
respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund
payments made with respect to the Securities of any particular
series shall be applied by the Trustee (or by the Corporation if
the Corporation is acting as its own Paying Agent) on the sinking
fund payment date on which such payment is made (or, if such
payment is made before a sinking fund payment date, on the sinking
fund payment date immediately following the date of such payment)
to the redemption of Securities of such series at the Redemption
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Price specified in such Securities with respect to the sinking
fund. Any and all sinking fund moneys with respect to the
Securities of any particular series held by the Trustee (or if the
Corporation is acting as its own Paying Agent, segregated and held
in trust as provided in Section 10.3) on the last sinking fund
payment date with respect to Securities of such series and not held
for the payment or redemption of particular Securities of such
series shall be applied by the Trustee (or by the Corporation if
the Corporation is acting as its own Paying Agent), together with
other moneys, if necessary, to be deposited (or segregated)
sufficient for the purpose, to the payment of the principal of the
Securities of such series at Maturity. The Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 11.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of
the Corporation in the manner provided in Section 11.4. Such notice
having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Section 11.6. On or
before each sinking fund payment date, the Corporation shall pay to
the Trustee (or, if the Corporation is acting as its own Paying
Agent, the Corporation shall segregate and hold in trust as
provided in Section 10.3) in cash a sum in the currency in which
Securities of such series are payable (except as provided pursuant
to Section 3.1) equal to the principal (and premium, if any) and
any interest (including any Additional Interest) accrued to the
Redemption Date for Securities or portions thereof to be redeemed
on such sinking fund payment date pursuant to this Section 12.3.
Neither the Trustee nor the Corporation shall redeem any
Securities of a series with sinking fund moneys or mail any notice
of redemption of Securities of such series by operation of the
sinking fund for such series during the continuance of a default in
payment of interest, if any, on any Securities of such series or of
any Event of Default (other than an Event of Default occurring as
a consequence of this paragraph) with respect to the Securities of
such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee
(or the Corporation, if the Corporation is then acting as its own
Paying Agent) shall redeem such Securities if cash sufficient for
that purpose shall be deposited with the Trustee (or segregated by
the Corporation) for that purpose in accordance with the terms of
this Article XII. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of
Default shall occur and any moneys thereafter paid into such
sinking fund shall, during the continuance of such default or Event
of Default, be held as security for the payment of the Securities
and coupons, if any, of such series; provided, however, that in
case such default or Event of Default shall have been cured or
waived herein, such moneys shall thereafter be applied on the next
sinking fund payment date for the Securities of such series on
which such moneys may be applied pursuant to the provisions of this
Section 12.3.
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ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Debt.
The Corporation covenants and agrees, and each Holder of a
Security, by its acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this
Article, the payment of the principal of (and premium, if any) and
interest (including any Additional Interest) on each and all of the
Securities of each and every series are hereby expressly made
subordinate and subject in right of payment to the prior payment in
full of all Senior Indebtedness of the Corporation.
SECTION 13.2. No Payment When Senior Debt in Default; Payment
Over of Proceeds Upon Dissolution, Etc.
If the Corporation shall default in the payment of any
principal of (or premium, if any) or interest on any of its Senior
Debt when the same becomes due and payable, whether at maturity or
at a date fixed for prepayment or by declaration of acceleration or
otherwise, then, upon written notice of such default to the
Corporation by the holders of Senior Debt or any trustee therefor,
unless and until such default shall have been cured or waived or
shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set off or otherwise) shall be made or
agreed to be made on account of the principal of (or premium, if
any) or interest (including any Additional Interest) on any of the
Securities or in respect of any redemption, repayment, retirement,
purchase or other acquisition of any of the Securities.
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other
similar proceedings relating to the Corporation, its creditors or
its property, (ii) any proceeding for the liquidation, dissolution
or other winding up of the Corporation, voluntary or involuntary,
whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Corporation for the benefit of
creditors or (iv) any other marshalling of the assets of the
Corporation (each such event, if any, herein sometimes referred to
as a "Proceeding"), all Senior Debt of the Corporation (including
any interest thereon accruing after the commencement of any such
proceedings), shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall
be made to any Holder of any of the Securities on account thereof.
Any payment or distribution, whether in cash, securities or other
property (other than securities of the Corporation or any other
corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the
extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities to the payment of all
Senior Debt of the Corporation at the time outstanding and to any
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securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise (but for
these subordination provisions) be payable or deliverable in
respect of the Securities of any series shall be paid or delivered
directly to the holders of Senior Debt of the Corporation in
accordance with the priorities then existing among such holders
until all such Senior Debt (including any interest thereon accruing
after the commencement of any Proceeding) shall have been paid in
full.
In the event of any Proceeding, after payment in full of all
sums owing with respect to the Corporation's Senior Debt the
Holders of the Securities together with the holders of any
obligations of the Corporation ranking on a parity with the
Securities (which for this purpose only shall include the Allocable
Amounts of Senior Subordinated Indebtedness), shall be entitled to
be paid from the remaining assets of the Corporation the amounts at
the time due and owing on account of unpaid principal of (and
premium, if any) and interest on the Securities and such other
obligations before any payment or other distribution, whether in
cash, property or otherwise, shall be made on account of any
capital stock or any obligations of the Corporation ranking junior
to the Securities and such other obligations. If, notwithstanding
the foregoing, any payment or distribution of any character or any
security, whether in cash, securities or other property (other than
securities of the Corporation or any other corporation provided for
by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the
Securities to the payment of all Senior Debt of the Corporation at
the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment),
shall be received by the Trustee or any Holder in contravention of
any of the terms hereof and before all Senior Debt of the
Corporation shall have been paid in full, such payment or
distribution or security shall be received in trust for the benefit
of, and shall be paid over or delivered and transferred to, the
holders of the Senior Debt of the Corporation at the time
outstanding in accordance with the priorities then existing among
such holders for application to the payment of all Senior Debt of
the Corporation remaining unpaid, to the extent necessary to pay
all such Senior Debt of the Corporation remaining unpaid, to the
extent necessary to pay all such Senior Debt of the Corporation in
full. In the event of the failure of the Trustee or any Holder to
endorse or assign any such payment, distribution or security, each
holder of Senior Debt of the Corporation is hereby irrevocably
authorized to endorse or assign the same.
The Trustee and the Holders shall take such action (including,
without limitation, the delivery of this Indenture to an agent for
the holders of Senior Debt of the Corporation or consent to the
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filing of a financing statement with respect hereto) as may, in the
opinion of counsel designated by the holders of a majority in
principal amount of the Senior Debt of the Corporation at the time
outstanding, be necessary or appropriate to assure the
effectiveness of the subordination effected by these provisions.
The provisions of this Section 13.2 shall not impair any
rights, interests, remedies or powers of any secured creditor of
the Corporation in respect of any security interest the creation of
which is not prohibited by the provisions of this Indenture.
The securing of any obligations of the Corporation otherwise
ranking on a parity with the Securities or ranking junior to the
Securities shall not be deemed to prevent such obligations from
constituting, respectively, obligations ranking on a parity with
the Securities or ranking junior to the Securities.
SECTION 13.3. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent (i) the
Corporation at any time, except during the pendency of the
conditions described in the first paragraph of Section 13.2 or of
any Proceeding referred to in Section 13.2, from making payments at
any time of principal of (and premium, if any) or interest
(including any Additional Interest) on the Securities or (ii) the
application by the Trustee of any moneys deposited with it
hereunder to the payment of or on account of the principal of (and
premium, if any) or interest (including any Additional Interest) on
the Securities or the retention of such payment by the Holders, if,
at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the
provisions of this Article.
SECTION 13.4. Subrogation to Rights of Holders of Senior
Debt.
Subject to the payment in full of all amounts due or to become
due on all Senior Debt of the Corporation or the provision for such
payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of the Corporation as
the case may be, the Holders of the Securities shall be subrogated
to the extent of the payments or distributions made to the holders
of such Senior Debt pursuant to the provisions of this Article
(equally and ratably with the holders of all indebtedness of the
Corporation that by its express terms is subordinated to Senior
Debt of the Corporation to substantially the same extent as the
Securities are subordinated to the Senior Debt of the Corporation
and is entitled to like rights of subrogation by reason of any
payments or distributions made to holders of such Senior Debt) to
the rights of the holders of such Senior Debt to receive payments
and distributions of cash, property and securities applicable to
the Senior Debt of the Corporation until the principal of (and
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premium, if any) and interest (including any Additional Interest)
on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the
Senior Debt of the Corporation of any cash, property or securities
to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of
Senior Debt of the Corporation by Holders of the Securities or the
Trustee, shall, as among the Corporation, its creditors other than
holders of its Senior Debt and the Holders of the Securities be
deemed to be a payment or distribution by the Corporation to or on
account of its Senior Debt.
SECTION 13.5. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Debt of the
Corporation on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or
shall (i) impair, as between the Corporation and the Holders of the
Securities the obligations of the Corporation which are absolute
and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest (including any
Additional Interest) on the Securities as and when the same shall
become due and payable in accordance with their terms, (ii) affect
the relative rights against the Corporation of the Holders of the
Securities and creditors of the Corporation other than their rights
in relation to the holders of Senior Debt of the Corporation or
(iii) prevent the Trustee or the Holder of any Security (or to the
extent expressly provided herein, the holder of any Trust Preferred
Security) from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, including filing
and voting claims in any Proceeding, subject to the rights, if any,
under this Article of the holders of Senior Debt of the Corporation
to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof
authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or
effectuate the subordination provided in this Article and appoints
the Trustee his or her attorney-in-fact for any and all such
purposes.
SECTION 13.7. No Waiver of Subordination Provisions.
No right of any present or future holder of any of the
Corporation's Senior Debt to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Corporation or by any
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act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Corporation with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the immediately
preceding paragraph, the holders of the Corporation's Senior Debt
may, at any time and from to time, without the consent of or notice
to the Trustee or the Holders of the Securities of any series
without incurring responsibility to such Holders of the Securities
and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of such Holders of the
Securities to the holders of the Corporation's Senior Debt do any
one or more of the following: (i) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter,
Senior Debt of the Corporation or otherwise amend or supplement in
any manner such Senior Debt or any instrument evidencing the same
or any agreement under which such Senior Debt is outstanding; (ii)
sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt of the
Corporation; (iii) release any Person liable in any manner for the
collection of Senior Debt of the Corporation; and (iv) exercise or
refrain from exercising any rights against the Corporation and any
other Person.
SECTION 13.8. Notice to Trustee.
The Corporation shall give prompt written notice to the
Trustee of any fact known to the Corporation that would prohibit
the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any
other provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts that would prohibit
the making of any payment to or by the Trustee in respect of the
Securities unless and until the Trustee shall have received written
notice thereof from the Corporation or a holder of the
Corporation's Senior Debt, as the case may be, or from any trustee,
agent or representative therefor; provided, however, that if the
Trustee shall not have received the notice provided for in this
Section at least two Business Days prior to the date upon which by
the terms hereof any moneys may become payable for any purpose
(including, the payment of the principal of (and premium, if any,
on) or interest (including any Additional Interest) on any
Security) then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which
they were received and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior
to such date.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a
Person representing himself or herself to be a holder of Senior
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Debt of the Corporation (or a trustee or attorney-in-fact
therefor), to establish that such notice has been given by a holder
of Senior Debt of the Corporation (or a trustee or attorney-in-fact
therefor). In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any
Person as a holder of Senior Debt of the Corporation to participate
in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Debt of the Corporation held by such Person, the extent to which
such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
SECTION 13.9. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Corporation
referred to in this Article, the Trustee, subject to the provisions
of Section 6.1, and the Holders of the Securities shall be entitled
to rely upon any order or decree entered by any court of competent
jurisdiction in which such Proceeding is pending, or a certificate
of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness
of the Corporation the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 13.10. Trustee Not Fiduciary for Holders of Senior
Debt.
The Trustee, in its capacity as trustee under this Indenture,
shall not be deemed to owe any fiduciary duty to the holders of the
Corporation's Senior Debt and shall not be liable to any such
holders if it shall in good faith mistakenly pay over or distribute
to Holders of Securities or to the Corporation or to any other
Person cash, property or securities to which any holders of
Corporation's Senior Debt shall be entitled by virtue of this
Article or otherwise.
SECTION 13.11. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior
Debt of the Corporation that may at any time be held by it, to the
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same extent as any other holder of Senior Debt of the Corporation
and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
SECTION 13.12. Article Applicable to Paying Agents.
If at any time any Paying Agent other than the Trustee shall
have been appointed by the Corporation and be then acting
hereunder, the term "Trustee" as used in this Article shall in such
case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee.
* * * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year
first above written.
SOUTH CAROLINA ELECTRIC & GAS COMPANY
By:__________________________________
Name:
Title:
Address: South Carolina Electric & Gas Company
1426 Main Street
Columbia, South Carolina 29202
Attention: Chief Financial Officer
THE BANK OF NEW YORK,
as Trustee
By:___________________________________
Name:
Title:
Attest:
__________________________________
198
<PAGE>
Exhibit 4-B
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
199
<PAGE>
Exhibit 4-C
TRUST AGREEMENT
TRUST AGREEMENT dated as of October 8, 1997, by and between
South Carolina Electric & Gas Company, a South Carolina
corporation, as "Depositor," and The Bank of New York (Delaware),
as trustee (the "Delaware Trustee"), and M. R. Cannon, as trustee
(the "Administrative Trustee" and together with the Delaware
Trustee, the "Trustees").
The Depositor and the Trustees hereby agree as follows:
Section 1. The Trust. The trust created hereby shall be
known as "SCE&G Trust I" (the "Trust"), in which name the Trustees,
or the Depositor to the extent provided herein, may conduct the
business of the Trust, make and execute contracts, and sue and be
sued.
Section 2. The Trust Estate. The Depositor hereby assigns,
transfers, conveys and sets over to the Trust the sum of $10. Such
amount shall constitute the initial trust estate. It is the
intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801 et seq. (the "Business Trust
Act"), and that this document constitutes the governing instrument
of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Delaware
Secretary of State in accordance with the provisions of the
Business Trust Act.
Section 3. Amended and Restated Trust Agreement. The
Depositor, the Trustees and certain other parties will enter into
an amended and restated Trust Agreement, satisfactory to each such
party and substantially in the form to be included as an exhibit to
the 1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and the
issuance of the Preferred Securities (as defined below) and common
securities of the Trust to be referred to therein. Prior to the
execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior
to such execution and delivery and licenses, consents or approvals
required by applicable law or otherwise.
200
<PAGE>
Section 4. Certain Authorizations. The Depositor, as the
sponsor of the Trust, is hereby authorized, (i) to file with the
Securities and Exchange Commission (the "Commission") and execute,
in each case on behalf of the Trust (a) the Registration Statement
on Form S-3 (the "1933 Act Registration Statement"), including any
pre-effective or post-effective amendments to such 1933 Act
Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the
Securities Act of 1933, as amended, of the preferred securities of
the Trust (the "Preferred Securities") and certain other
securities of the Depositor and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under
Section 12 of the Securities Exchange Act of 1934, as amended; (ii)
to file with one or more national securities exchanges (each, an
"Exchange") or the National Association of Securities Dealers
("NASD") and execute on behalf of the Trust a listing application
or applications and all other applications, statements,
certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities to be
listed on any such Exchange or the NASD's Nasdaq National Market;
(iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as
the Depositor on behalf of the Trust, may deem necessary or
desirable to register the Preferred Securities under the securities
or "Blue Sky" laws; and (iv) to execute on behalf of the Trust such
Underwriting Agreements with one or more underwriters relating to
the offering of the Preferred Securities as the Depositor, on
behalf of the Trust, may deem necessary or desirable. In the event
that any filing referred to in clauses (i), (ii) or (iii) above is
required by the rules and regulations of the Commission, any
Exchange, the NASD or state securities or "Blue Sky" laws, to be
executed on behalf of the Trust by a Trustee, the Depositor and any
Trustee are hereby authorized to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing; it
being understood that The Bank of New York (Delaware), in its
capacity as a trustee of the Trust, shall not be required to join
in any such filing or execute on behalf of the Trust any such
document unless required by any such law, rule or regulation.
Section 5. Counterparts. This Trust Agreement may be
executed in one or more counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the
same instrument.
201
<PAGE>
Section 6. Trustees. The number of Trustees initially
shall be two (2) and thereafter the number of Trustees shall be
such number as shall be fixed from time to time by a written
instrument signed by the Depositor, which may increase or decrease
the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a
natural person who is a resident of the State of Delaware or, if
not a natural person, an entity which has its principal place of
business in the State of Delaware and otherwise meets the
requirements of applicable Delaware law. Subject to the foregoing,
the Depositor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon thirty days'
prior notice to the Depositor, provided, however, such notice shall
not be required if it is waived by the Depositor.
Section 7. Limitation. The Bank of New York (Delaware), in
its capacity as a Trustee, shall not have any of the powers or
duties of the Trustees set forth herein, except as expressly
required by the Business Trust Act, and shall be a trustee of the
Trust for the sole purpose of satisfying the requirements of
Section 3807 of the Business Trust Act.
Section 8. Governing Law. This Trust Agreement shall be
governed by, and construed in accordance with, the laws of the
State of Delaware (without regard to conflicts of law principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above
written.
SOUTH CAROLINA ELECTRIC & GAS
COMPANY, as Depositor
By: _____________________________________
Name:
Title:
THE BANK OF NEW YORK (DELAWARE), as Delaware
Trustee
By: ______________________________________
Name:
Title:
________________________________________,
M. R. Cannon, as Administrative Trustee
202
<PAGE>
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 __________ 1, 1997
- ---------------------
SCE&G TRUST I
==========================================
203
<PAGE>
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.
204
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINED TERMS 2
SECTION 1.1. Definitions. 2
ARTICLE II
CONTINUATION OF THE ISSUER TRUST 11
SECTION 2.1. Name. 11
SECTION 2.2. Office of the Delaware Trustee; Principal
Place of Business 11
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses 11
SECTION 2.4. Issuance of the Trust Preferred Securities 12
SECTION 2.5. Issuance of the Common Securities;
Subscription and Purchase of Debentures 12
SECTION 2.6. Continuation of Trust 12
SECTION 2.7. Authorization to Enter into Certain
Transactions 13
SECTION 2.8. Assets of Trust 16
SECTION 2.9. Title to Trust Property 17
ARTICLE III
PAYMENT ACCOUNT 17
SECTION 3.1. Payment Account 17
ARTICLE IV
REDEMPTION 17
SECTION 4.1. Distributions 17
SECTION 4.2. Redemption 18
SECTION 4.3. Subordination of Common Securities 20
SECTION 4.4. Payment Procedures 21
SECTION 4.5. Tax Returns and Reports
SECTION 4.6. Payment of Taxes, Duties, Etc. of
the Issuer Trust 22
SECTION 4.7. Payments under Indenture or Pursuant
to Direct Actions 22
205
<PAGE>
ARTICLE V
TRUST SECURITIES CERTIFICATES 22
SECTION 5.1. Initial Ownership 22
SECTION 5.2. The Trust Securities Certificates 22
SECTION 5.3. Execution and Delivery of Trust Securities
Certificates 23
SECTION 5.4. Book-Entry Trust Preferred Securities 23
SECTION 5.5. Registration of Transfer and Exchange of
Trust Preferred Securities Certificates 25
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates 27
SECTION 5.7. Persons Deemed Holders 27
SECTION 5.8. Access to List of Holders' Names
and Addresses 27
SECTION 5.9. Maintenance of Office or Agency 28
SECTION 5.10. Appointment of Paying Agent 28
SECTION 5.11. Ownership of Common Securities by Depositor 28
SECTION 5.12. Notices to Clearing Agency 29
SECTION 5.13. Rights of Holders; Waivers of Past Defaults 29
ARTICLE VI
CTS OF HOLDERS; MEETINGS; VOTING 31
SECTION 6.1. Limitations on Voting Rights 31
SECTION 6.2. Notice of Meetings 32
SECTION 6.3. Meetings of Holders of the Trust Preferred
Securities 32
SECTION 6.4. Voting Rights 33
SECTION 6.5. Proxies, etc 33
SECTION 6.6. Holder Action by Written Consent 33
SECTION 6.7. Record Date for Voting and Other Purposes 34
SECTION 6.8. Acts of Holders 34
SECTION 6.9. Inspection of Records 35
ARTICLE VII
REPRESENTATIONS AND WARRANTIES 35
SECTION 7.1. Representations and Warranties of the
Property Trustee and the Delaware Trustee 35
SECTION 7.2. Representations and Warranties of Depositor 37
206
<PAGE>
ARTICLE VIII
THE ISSUER TRUSTEES 37
SECTION 8.1. Certain Duties and Responsibilities 37
SECTION 8.2. Certain Notices 39
SECTION 8.3. Certain Rights of Property Trustee 40
SECTION 8.4. Not Responsible for Recitals or Issuance
of Securities 42
SECTION 8.5. May Hold Securities 42
SECTION 8.6. Compensation; Indemnity; Fees 42
SECTION 8.7. Corporate Property Trustee Required;
Eligibility of Issuer Trustees 43
SECTION 8.8. Conflicting Interests 44
SECTION 8.9. Co-Trustees and Separate Trustee 44
SECTION 8.10. Resignation and Removal; Appointment of
Successor 45
SECTION 8.11. Acceptance of Appointment by Successor 46
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business 47
SECTION 8.13. Preferential Collection of Claims Against
Depositor or Issuer Trust 48
SECTION 8.14. Property Trustee May File Proofs of Claim 48
SECTION 8.15. Reports by Property Trustee 49
SECTION 8.16. Reports to the Property Trustee 49
SECTION 8.17. Evidence of Compliance with Conditions
Precedent 49
SECTION 8.18. Number of Issuer Trustees 50
SECTION 8.19. Delegation of Power 50
SECTION 8.20. Appointment of Administrative Trustees 50
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER 51
SECTION 9.1. Dissolution Upon Expiration Date 51
SECTION 9.2. Early Dissolution 51
SECTION 9.3. Termination 52
SECTION 9.4. Liquidation 52
SECTION 9.5. Mergers, Consolidations, Amalgamations
or Replacements of Issuer Trust 53
207
<PAGE>
ARTICLE X
MISCELLANEOUS PROVISIONS 54
SECTION 10.1. Limitation of Rights of Holders 54
SECTION 10.2. Amendment 55
SECTION 10.3. Separability 56
SECTION 10.4. Governing Law 56
SECTION 10.5. Payments Due on Non-Business Day 56
SECTION 10.6. Successors 56
SECTION 10.7. Headings 57
SECTION 10.8. Reports, Notices and Demands 57
SECTION 10.9. Agreement Not to Petition 58
SECTION 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act 58
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee Agreement and Indenture 58
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
208
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of _______ __, ____,
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 corporation organized and existing under the
laws of the State of New York, 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, the Property Trustee, the Delaware Trustee
and certain of the Administrative Trustees 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 __________ __, ____ (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 _________ __, ____,
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:
209
<PAGE>
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.
210
<PAGE>
"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.
211
<PAGE>
"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.
212
<PAGE>
"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 ___% 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.
213
<PAGE>
"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
214
<PAGE>
(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.
"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
__________ ___, 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 ________ __, 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.
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"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.
"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.
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"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
(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
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(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).
"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.
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"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.
"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
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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.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Trust Preferred Securities Certificates.
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"Underwriters" means Credit Suisse First Boston and PaineWebber
Incorporated as the underwriters under the Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated
__________ ___, 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
___________________ __________________, _________________ _________,
Attention: [________________], 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
$10, which constituted the initial Trust Property. The Depositor shall
pay organizational expenses of the Issuer Trust as
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they arise or shall, upon request of any Issuer Trustee, promptly
reimburse such Issuer Trustee for any such expenses paid by such Issuer
Trustee. The Depositor shall make no claim upon the Trust Property for
the payment of such expenses.
SECTION 2.4. Issuance of the Trust Preferred Securities.
The Depositor, both on its own behalf and on behalf of the Issuer
Trust pursuant to the Original Trust Agreement, executed and delivered
the Underwriting Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, an Administrative Trustee, on behalf
of the Issuer Trust, shall manually execute in accordance with Sections
5.2, 5.3 and 8.9(a) and the Property Trustee shall deliver to the
Underwriters, Trust Preferred Securities Certificates, registered in the
names requested by the Underwriters, evidencing an aggregate of
[___________] Trust Preferred Securities having an aggregate Liquidation
Amount of [$______________], against receipt of the aggregate purchase
price of such Trust Preferred Securities of [$______________], by the
Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Issuer Trust,
shall execute in accordance with Sections 5.2, 5.3 and 8.9(a) and the
Property Trustee shall deliver to the Depositor, Common Securities
Certificates, registered in the name of the Depositor, evidencing an
aggregate of [____] Common Securities having an aggregate Liquidation
Amount of [$_________], against receipt of the aggregate purchase price
of such Common Securities of [$_________], to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the
Issuer Trust, shall subscribe for and purchase from the Depositor the
Debentures, registered in the name of the Property Trustee on behalf of
the Issuer Trust and having an aggregate principal amount equal to
[$__________], 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 [$__________] (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).
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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
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;
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(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;
(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;
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(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;
(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.
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(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):
(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;
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(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
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.
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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.
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 _______ __, ____, 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
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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 [____]% 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.
(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);
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(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.
(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
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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.
(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.
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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.
(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
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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.
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.
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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.
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.
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(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
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
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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
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.
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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.
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.
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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
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).
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(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.
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.
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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 __________________
______________________________, ___________________________, ___________
Attention: _____________________________, 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 (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
reasonable compensation 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 resign or be
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 ___________ 1, 2053 (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
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Distributions on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so
surrendered, no payments of interest or principal will be made to
Holders of Trust Securities Certificates with respect to such
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
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"Successor Securities") so long as the Successor Securities have the
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,
____________________________________, _______, ______________,
Attention: ________________________________; (ii) with respect to the
Delaware Trustee, The Bank of New York (Delaware), _______________,
__________, ______________, Attention: ______________________; (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:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:________________________________________
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:_________________________________________
Name:
Title:
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__________________________________________
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 4-F
GUARANTEE AGREEMENT
BY AND BETWEEN
SOUTH CAROLINA ELECTRIC & GAS COMPANY
as Guarantor
and
THE BANK OF NEW YORK,
as Guarantee Trustee
RELATING TO
SCE&G TRUST I
- ---------------------------
Dated as of ____________ 1, 1997
- ---------------------------
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CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee
Agreement
310(a) 4.1(a)
310(b) 4.1(c), 2.8
310(c) Inapplicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
312(c) Inapplicable
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 1.1, 2.5, 3.2(a)
314(f) 2.1, 3.2
315(a) 3.1(d)(i)
315(b) 2.7
315(c) 3.1(c)
315(d) 3.1(d)
315(e) Inapplicable
316(a) 1.1, 2.6, 5.4
316(b) 5.5
316(c) 8.3
317(a) 2.7(c)
317(b) Inapplicable
318(a) 2.1
318(b) 2.1
318(c) 2.1
____________________
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of any
of its terms or provisions.
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS 1
SECTION 1.1. Definitions 1
ARTICLE II
TRUST INDENTURE ACT 5
SECTION 2.1. Trust Indenture Act; Application 5
SECTION 2.2. List of Holders 5
SECTION 2.3. Reports by the Guarantee Trustee 5
SECTION 2.4. Periodic Reports to the Guarantee Trustee 6
SECTION 2.5. Evidence of Compliance with Conditions
Precedent 6
SECTION 2.6. Events of Default; Waiver 6
SECTION 2.7. Event of Default; Notice 6
SECTION 2.8. Conflicting Interests 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE 7
SECTION 3.1. Powers and Duties of the Guarantee Trustee 7
SECTION 3.2. Certain Rights of Guarantee Trustee 8
SECTION 3.3. Compensation; Indemnity; Fees 10
ARTICLE IV
GUARANTEE TRUSTEE 11
SECTION 4.1. Guarantee Trustee; Eligibility 11
SECTION 4.2. Appointment, Removal and Resignation of
the Guarantee Trustee 11
ARTICLE V
GUARANTEE 12
SECTION 5.1. Guarantee 12
SECTION 5.2. Waiver of Notice and Demand 12
SECTION 5.3. Obligations Not Affected 12
SECTION 5.4. Rights of Holders 13
SECTION 5.5. Unconditional Right of Holders to Payment 14
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SECTION 5.6. Guarantee of Payment 14
SECTION 5.7. Subrogation 14
SECTION 5.8. Independent Obligations 14
ARTICLE VI
COVENANTS AND SUBORDINATION 14
SECTION 6.1. Subordination 14
SECTION 6.2. Pari Passu Guarantees 15
ARTICLE VII
TERMINATION 15
SECTION 7.1. Termination 15
ARTICLE VIII
MISCELLANEOUS 15
SECTION 8.1. Successors and Assigns 15
SECTION 8.2. Amendments 16
SECTION 8.3. Record Date 16
SECTION 8.4. Notices 16
SECTION 8.5. Benefit 17
SECTION 8.6. Governing Law 17
SECTION 8.7. Counterparts 17
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GUARANTEE AGREEMENT, dated as of ___________ 1, 1997, by and
between South Carolina Electric & Gas Company, a South Carolina
corporation (the "Guarantor"), and The Bank of New York, a
corporation organized and existing under the laws of the State of
New York, as trustee (the "Guarantee Trustee"), for the benefit of
the Holders (as defined herein) from time to time of the Trust
Preferred Securities (as defined herein) of SCE&G TRUST I, a
Delaware statutory business trust (the "Issuer Trust").
RECITALS OF THE CORPORATION
WHEREAS, pursuant to an Amended and Restated Trust Agreement,
dated as of __________ 1, 1997 (the "Trust Agreement," as more
particularly defined herein), among South Carolina Electric & Gas
Company, as Depositor, the Property Trustee, the Delaware Trustee,
the Administrative Trustees (as such terms are defined in the Trust
Agreement), the Holders and the holders of the Common Securities
the Issuer Trust is issuing $_____________ aggregate Liquidation
Amount (as defined in the Trust Agreement) of its ___% Trust
Preferred Securities, Series A (liquidation amount $25 per Trust
Preferred Security) (the "Trust Preferred Securities"),
representing preferred undivided beneficial interests in the assets
of the Issuer Trust and having the terms set forth in the Trust
Agreement; and
WHEREAS, the Trust Preferred Securities will be issued by the
Issuer Trust and the proceeds thereof, together with the proceeds
from the issuance of the Issuer Trust's Common Securities (as
defined herein), will be used to purchase the Debentures (as
defined in the Trust Agreement) of the Guarantor, which Debentures
will be deposited with the Property Trustee under the Trust
Agreement, as trust assets; and
WHEREAS, as an incentive for the Holders to purchase Trust
Preferred Securities, the Guarantor desires irrevocably and
unconditionally to agree, to the extent set forth herein, to pay to
the Holders of the Trust Preferred Securities the Guarantee
Payments (as defined herein), as the case may be, and to make
certain other payments on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the purchase of Trust
Preferred Securities by each Holder, which purchase the Guarantor
hereby acknowledges shall benefit the Guarantor, the Guarantor
executes and delivers this Guarantee Agreement for the benefit of
the Holders from time to time.
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
For all purposes of this Guarantee 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" or a "Section" refers to an Article or a Section, as the
case may be, of this Guarantee Agreement; and
(f) The words "hereby," "herein," "hereof" and "hereunder" and
other words of similar import refer to this Guarantee Agreement as
a whole and not to any particular Article, Section or other
subdivision.
"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.
"Board of Directors" means, as the context requires, the board
of directors of the Guarantor or the Executive Committee of the
board of directors of the Guarantor (or any other committee of the
board of directors of the Guarantor performing similar functions)
or a committee designated by the board of directors of the
Guarantor (or such committee), comprised of two or more members of
the board of directors of the Guarantor or officers of the
Guarantor, or both.
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"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer Trust.
"Event of Default" means (i) a default by the Guarantor in any
of its payment obligations under this Guarantee Agreement or (ii)
a default by the Guarantor in any other obligation hereunder that
remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as
modified, amended or supplemented from time to time.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Trust
Preferred Securities, to the extent not paid or made by or on
behalf of the Issuer Trust: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be
paid on the Trust Preferred Securities, to the extent the Issuer
Trust shall have funds on hand available therefor at such time;
(ii) the Redemption Price (as defined in the Trust Agreement) with
respect to any Trust Preferred Securities called for redemption by
the Issuer Trust, to the extent the Issuer Trust shall have funds
on hand available therefor at such time; and (iii) upon a voluntary
or involuntary termination, winding-up or liquidation of the Issuer
Trust, unless Debentures are distributed to the Holders, the lesser
of (a) the Liquidation Distribution (as defined in the Trust
Agreement) with respect to the Trust Preferred Securities, to the
extent that the Issuer Trust shall have funds on hand available
therefor at such time, and (b) the amount of assets of the Issuer
Trust remaining available for distribution to Holders on
liquidation of the Issuer.
"Guarantee Trustee" means The Bank of New York, solely in its
capacity as Guarantee Trustee and not in its individual capacity,
until a Successor Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Guarantee
Agreement, and thereafter means each such Successor Guarantee
Trustee.
"Guarantor" has the meaning specified in the preamble of this
Guarantee Agreement.
"Holder" means any Holder (as defined in the Trust Agreement)
of any Trust Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of
Trust Preferred Securities have given any request, notice, consent
or waiver hereunder, "Holder" shall not include the Guarantor, the
Guarantee Trustee or any Affiliate of the Guarantor or the
Guarantee Trustee.
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"Indenture" means the Junior Subordinated Indenture, dated as
of ____________ 1, 1997, among the Guarantor and The Bank of New
York, as trustee, as the same may be modified, amended or
supplemented from time to time.
"Issuer Trust" has the meaning specified in the preamble of
this Guarantee Agreement.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Trust Preferred
Securities" means, except as provided by the Trust Indenture Act,
Trust Preferred Securities representing more than 50% of the
aggregate Liquidation Amount (as defined in the Trust Agreement) of
all Trust Preferred Securities then Outstanding (as defined in the
Trust Agreement).
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman of the Board of Directors of
such Person or the Chief Executive Officer, the President, the
Chief Financial Officer, a Vice President or the Treasurer of such
Person, and by the Secretary or an Assistant Secretary of such
Person, and delivered to the Guarantee Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall include:
(a) a statement 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
(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint-stock company, company, limited liability company, trust,
business trust, unincorporated association or government or any
agency or political subdivision thereof, or any other entity of
whatever nature.
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"Responsible Officer" means, with respect to the Guarantee
Trustee, any Senior Vice President, any Vice President, any
Assistant Vice President, the Secretary, any Assistant Secretary,
the Treasurer, any Assistant Treasurer, any Trust Officer or
Assistant Trust Officer or any other officer of the Corporate Trust
Department of the Guarantee Trustee and also means, with respect to
a particular matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity
with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee
under Section 4.1.
"Trust Agreement" means the Amended and Restated Trust
Agreement of the Issuer Trust referred to in the recitals to this
Guarantee Agreement, as modified, amended or supplemented from time
to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this Guarantee Agreement 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" has the meaning specified in the
recitals to this Guarantee Agreement.
"Vice President," when used with respect to the Guarantor,
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
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions.
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(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by
Sections 310 to 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 Guarantee 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 Guarantee Agreement as so modified or to be
excluded, as the case may be.
SECTION 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to
the Guarantee Trustee (a) semi-annually, on or before ____________
and ___________ of each year, a list, in such form as the Guarantee
Trustee may reasonably require, of the names and addresses of the
Holders (a "List of Holders") as of a date not more than 15 days
prior to the delivery thereof, and (b) at such other times as the
Guarantee Trustee may request in writing, within 30 days after the
receipt by the Guarantors of any such request, a List of Holders as
of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the
possession or control of the Guarantor and has not otherwise been
received by the Guarantee Trustee in its capacity as such. The
Guarantee Trustee may destroy any List of Holders previously given
to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with the requirements
of Section 311(a), Section 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than January 31 of each year, the Guarantee Trustee
shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The
Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the
Securities and Exchange Commission and the Holders such documents,
reports and information, if any, as required by Section 314 of the
Trust Indenture Act and the compliance certificate required by
Section 314 of the Trust Indenture Act, in the form, in the manner
and at the times required by Section 314 of the Trust Indenture
Act.
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SECTION 2.5. Evidence of Compliance with Conditions
Precedent.
The Guarantor shall provide to the Guarantee Trustee such
evidence of compliance with such conditions precedent, if any,
provided for in this Guarantee Agreement that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer of the
Guarantor pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of at least a Majority in Liquidation Amount of
the Trust Preferred Securities may, by vote, 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 Guarantee Agreement, but
no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders, notice of any such Event of
Default known to the Guarantee Trustee, unless such Event of
Default has been cured before the giving of such notice, provided
that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible
Officers of the Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice, or a Responsible Officer
charged with the administration of this Guarantee Agreement shall
have obtained actual knowledge, of such Event of Default.
(c) Subject to the provisions of Section 5.4 hereof, in the
case of a default by the Guarantor in any of its payment
obligations under this Guarantee Agreement, when and as the same
shall become due and payable, the Guarantee Trustee shall have the
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right, subject to the rights of the Holders hereunder, to recover
judgment against the Guarantor for the whole amount of such
payments remaining unpaid.
SECTION 2.8. Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be
specifically described in this Guarantee Agreement for the purposes
of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee
shall not transfer this Guarantee Agreement to any Person except to
a Successor Guarantee Trustee on acceptance by such Successor
Guarantee Trustee of its appointment to act as Guarantee Trustee
hereunder. The right, title and interest of the Guarantee Trustee,
as such, hereunder shall automatically vest in any Successor
Guarantee Trustee, upon acceptance by such Successor Guarantee
Trustee of its appointment hereunder, and such vesting of title
shall be effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing,
the Guarantee Trustee shall enforce this Guarantee Agreement for
the benefit of the Holders.
(c) The Guarantee 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 Guarantee Agreement, and no implied
covenants shall be read into this Guarantee Agreement against the
Guarantee Trustee. The Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee Agreement, and use
the same degree of care and skill in its exercise thereof, as a
prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act or its own
wilful misconduct, except that:
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(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 Guarantee
Trustee shall be determined solely by the express
provisions of this Guarantee Agreement (including
pursuant to Section 2.1), and the Guarantee Trustee shall
not be liable except for the performance of such duties
and obligations as are specifically set forth in this
Guarantee Agreement; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee 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 Guarantee
Trustee and conforming to the requirements of this
Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof or
of the Trust Indenture Act are specifically required to
be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Guarantee Agreement.
(ii) The Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer of the Guarantee Trustee, unless it shall be proved
that the Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made.
(iii) The Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it
in good faith in accordance with the direction of the Holders
of not less than a Majority in Liquidation Amount of the Trust
Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee Agreement.
(iv) No provision of this Guarantee Agreement shall
require the Guarantee 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 Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the
terms of this Guarantee Agreement or adequate indemnity
against such risk or liability is not reasonably assured to
it.
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SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document reasonably believed by it to be genuine and to
have been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of either of the
Guarantors contemplated by this Guarantee Agreement shall be
sufficiently evidenced by an Officers' Certificate unless
otherwise prescribed herein.
(iii) Whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting to take any action hereunder,
the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers' Certificate
which, upon receipt of such request from the Guarantee
Trustee, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal
counsel, and the written advice or opinion of such legal
counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder in good
faith and in accordance with such advice or opinion. Such
legal counsel may be legal counsel to the Guarantor or any of
its Affiliates and may be one of its employees. The Guarantee
Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from
any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Guarantee Agreement at the request or direction of
any Holder unless such Holder shall have provided to the
Guarantee Trustee such adequate security and indemnity as
would satisfy a reasonable person in the position of the
Guarantee Trustee against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction,
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including such reasonable advances as may be requested by the
Guarantee Trustee; provided that nothing contained in this
Section 3.2(a)(v) shall be taken to relieve the Guarantee
Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by
this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but the Guarantee Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit.
(vii) The Guarantee 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, and
the Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or
attorney appointed by it with due care hereunder.
(viii) Whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the
Guarantee Trustee (A) may request instructions from the
Holders, (B) may refrain from enforcing such remedy or right
or taking such other action until such instructions are
received and (C) shall be protected in acting in accordance
with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which
it shall be illegal, or in which the Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power,
duty or obligation. No permissive power or authority available to
the Guarantee Trustee shall be construed to be a duty to act in
accordance with such power and authority.
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SECTION 3.3. Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time
such reasonable compensation for all services rendered by it
hereunder as may be agreed by the Guarantor and the Guarantee
Trustee 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 Guarantee Trustee upon request for all
reasonable expenses, disbursements and advances incurred or
made by the Guarantee Trustee in accordance with any provision
of this Guarantee Agreement (including the reasonable
compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to indemnify the Guarantee Trustee for, and to hold
it harmless against, any loss, liability or expense incurred
without negligence, wilful misconduct or bad faith on the part
of the Guarantee Trustee, arising out of or in connection with
the acceptance or administration of this Guarantee Agreement,
including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Guarantee Trustee will not claim or exact any lien or charge on
any Guarantee Payments as a result of any amount due to it under
this Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000, and shall be a corporation
meeting the requirements of Section 310(a) of the Trust
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Indenture Act. If such corporation 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 4.1 and to the extent
permitted by the Trust Indenture Act, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set out
in Section 4.2.
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Guarantee Trustee and the Guarantor shall
in all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold
office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation
shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by instrument in
writing executed by such Successor Guarantee Trustee and delivered
to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery to the Guarantor of an instrument of
resignation, the resigning Guarantee Trustee may petition, at the
expense of the Guarantor, any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
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ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of
amounts theretofore paid by or on behalf of the Issuer Trust), as
and when due, regardless of any defense, right of set off or
counterclaim that the Issuer Trust may have or assert, except the
defense of payment. The Guarantor's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts
by the Guarantor to the Holders or by causing the Issuer Trust to
pay such amounts to the Holders.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this
Guarantee Agreement and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, the Issuer Trust or
any other Person before proceeding against either of the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee Agreement in no way be affected or
impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer Trust of
any express or implied agreement, covenant, term or condition
relating to the Trust Preferred Securities to be performed or
observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer
Trust of all or any portion of the Distributions (other than an
extension of time for payment of Distributions that results from
the extension of any interest payment period on the Debentures as
provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Trust
Preferred Securities or the extension of time for the performance
of any other obligation under, arising out of, or in connection
with, the Trust Preferred Securities;
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(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Trust Preferred Securities, or any action on the part
of the Issuer Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition
or readjustment of debt of, or other similar proceedings affecting,
the Issuer Trust or any of the assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the
Trust Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of
a guarantor (other than payment of the underlying obligation), it
being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder be absolute and unconditional under any and
all circumstances.
There be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any
of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held
for the benefit of the Holders; (ii) the Guarantee Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders;
(iii) the Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and (iv) any Holder may institute
a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement without first instituting a
legal proceeding against the Guarantee Trustee, the Issuer Trust or
any other Person.
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SECTION 5.5. Unconditional Right of Holders to Payment.
Notwithstanding any other provision of this Guarantee
Agreement, each Holder shall have the right, which is absolute and
unconditional, to receive Guarantee Payments when due, and to
institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.
SECTION 5.6. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and
not of collection. This Guarantee Agreement will not be discharged
except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer Trust) or
upon the distribution of Debentures to Holders as provided in the
Trust Agreement.
SECTION 5.7. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of
the Holders against the Issuer Trust in respect of any amounts paid
to the Holders by the Guarantor under this Guarantee Agreement;
provided, however, that the Guarantor shall not (except to the
extent required by mandatory provisions of law) be entitled to
enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in
all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts are due and unpaid
under this Guarantee Agreement. If any amount be paid to the
Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold the amount in trust for the Holders and to pay over
such amount to the Holders.
SECTION 5.8. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer Trust with respect to
the Trust Preferred Securities and that it be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of
any event referred to in subsections (a) through (g), inclusive, of
Section 5.3 hereof.
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ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
The obligations of the Guarantor under this Guarantee
Agreement will constitute unsecured obligations of the Guarantor
and will rank subordinate and junior in right of payment to all
Senior Indebtedness (as defined in the Indenture) of the Guarantor,
to the extent and in the manner set forth in the Indenture with
respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of
the Guarantor hereunder. The obligations of the Guarantor hereunder
do not constitute Senior Indebtedness (as defined in the Indenture)
of the Guarantor.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee
Agreement rank pari passu with the obligations of the Guarantor
under (i) any similar guarantee agreements issued by the Guarantor
on behalf of the holders of preferred or capital securities issued
by any Issuer Trust (as defined in the Indenture), (ii) the
Indenture and the Securities (as defined therein) issued thereunder
and (iii) any other security, guarantee or other agreement or
obligation that is expressly stated to rank pari passu with the
obligations of the Guarantor under this Guarantee Agreement or with
any obligation that ranks pari passu with the obligations of the
Guarantor under this Guarantee Agreement.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further
force and effect upon (i) full payment of the Redemption Price (as
defined in the Trust Agreement) of all Trust Preferred Securities,
(ii) the distribution of Debentures to the Holders in exchange for
all of the Trust Preferred Securities or (iii) full payment of the
amounts payable in accordance with Article IX of the Trust
Agreement upon liquidation of the Issuer Trust. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective
or will be reinstated, as the case may be, if at any time any
Holder is required to repay any sums paid with respect to Trust
Preferred Securities or this Guarantee Agreement.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor, and shall inure to the
benefit of the Holders of the Trust Preferred Securities then
outstanding. Except in connection with a consolidation, merger or
sale involving the Guarantor that is permitted under Article VIII
of the Indenture and pursuant to which the successor or assignee
agrees in writing to perform the Guarantor's obligations hereunder,
the Guarantor not assign its obligations hereunder, and any
purported assignment other than in accordance with this provision
be void.
SECTION 8.2. Amendments.
Except with respect to any changes that do not adversely
affect the rights of the Holders in any material respect (in which
case no consent of the Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the
Holders of not less than a Majority in Liquidation Amount of the
Trust Preferred Securities.
SECTION 8.3. Record Date.
For purposes of any action to be taken by Holders pursuant to
Sections 2.6, 5.4 or 8.2 hereof, the provisions of Article VI of
the Trust Agreement concerning meetings of the Holders shall apply.
SECTION 8.4. Notices.
Any notice, request or other communication required or
permitted to be given hereunder be in writing, duly signed by the
party giving such notice, and delivered, telecopied or mailed by
first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy
number set forth below or such other address or telecopy number as
the Guarantor may give notice to the Guarantee Trustee and the
Holders:
South Carolina Electric & Gas Company
1426 Main Street
Columbia, South Carolina 29201
Attention: Treasurer
Telecopy: (803) 933-7037
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(b) if given to the Guarantee Trustee, at the address or
telecopy number set forth below or such other address or telecopy
number as the Guarantee Trustee may give notice to the Guarantor
and Holders:
with a copy to:
SCE&G Trust I
c/o South Carolina Electric & Gas Company
1426 Main Street
Columbia, South Carolina
Attention: Treasurer
Telecopy: (803) 933-7037
(c) if given to any Holder, at the address set forth on the
books and records of the Issuer Trust.
All notices hereunder be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by
first class mail, postage prepaid, except that if a notice or other
document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other
document be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 8.5. Benefit.
This Guarantee Agreement is solely for the benefit of the
Holders and is not separately transferable from the Trust Preferred
Securities.
SECTION 8.6. Governing Law.
THIS GUARANTEE AGREEMENT BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.7. Counterparts.
This instrument may be executed in any number of counterparts,
each of which so executed be deemed to be an original, but all
such counterparts together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Guarantee Agreement as of the day and year first above written.
SOUTH CAROLINA ELECTRIC & GAS COMPANY
By:__________________________________________
Name:
Title:
THE BANK OF NEW YORK, as Guarantee Trustee
By:__________________________________________
Name:
Title:
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EXHIBIT 5(A)
Form of Opinion of
H. T. Arthur, Esq.
Counsel to the Company
October 10, 1997
South Carolina Electric & Gas Company
1426 Main Street
Columbia, South Carolina 29201
SCE&G Trust I
c/o South Carolina Electric & Gas Company
1426 Main Street
Columbia, South Carolina 29201
Ladies and Gentlemen:
In connection with the registration under the Securities Act
of 1933, as amended (the "Act"), of (i) $50,000,000 aggregate
liquidation amount of trust preferred securities representing
preferred undivided beneficial interests (the "Trust Preferred
Securities") in the assets of SCE&G Trust I (the "Trust"), (ii)
$50,000,000 aggregate principal amount of junior subordinated
deferrable interest debentures (the "Debentures") to be issued by
South Carolina Electric & Gas Company (the "Corporation") and (iii)
the Guarantee Agreement with respect to the Trust Preferred
Securities (the "Guarantee"), to be issued by the Corporation, I,
as General Counsel to the Corporation, have examined such corporate
records, certificates and other documents, and such questions of
law, as I have considered necessary or appropriate for the purposes
of this opinion.
Upon the basis of such examination, I advise you that, in my
opinion that when (i) the Registration Statement has become
effective under the Act, the indenture (the "Indenture") relating
to the Debentures has been duly authorized, executed and delivered,
the terms of the Debentures and of their issuance and sale have
been duly established in conformity with the Indenture so as not to
violate any applicable law or result in a default under or breach
of any agreement or instrument binding upon the Corporation and so
as to comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the
Corporation, the Debentures have been duly executed and
authenticated in accordance with the Indenture, the Debentures have
been issued and sold as contemplated in the Registration
302
<PAGE>
Statement, the terms of the Guarantee and of its issuance have been
duly established so as not to violate any applicable law or result
in a default under or breach of any agreement or instrument binding
upon the Corporation and so as to comply with any requirement or
restriction imposed by any court or governmental body having
jurisdiction over the Corporation, and the Guarantee has been duly
authorized, executed and delivered by the Corporation, (ii) each of
the Debentures and the Guarantee will constitute valid and legally
binding obligations of the Corporation, 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.
The foregoing opinion is limited to the Federal laws of the
United States and the laws of the State of South Carolina, and I am
expressing no opinion as to the effect of the laws of any other
jurisdiction.
Also, I have relied as to certain matters on information
obtained from public officials, officers of the Corporation and the
Trust and other sources believed by me to be responsible.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to me under the
heading "Validity" in the Prospectus. In giving such consent, I do
not thereby admit that I am in the category of persons whose
consent is required under Section 7 of the Act.
Very truly yours,
s/H. T. Arthur
H. T. Arthur
General Counsel, South Carolina
Electric & Gas Company
303
<PAGE>
EXHIBIT 5(B)
Richards, Layton & Finger
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
October 10, 1997
South Carolina Electric & Gas Company
1426 Main Street
Columbia, South Carolina 29201
SCE&G Trust I
c/o South Carolina Electric & Gas Company
1426 Main Street
Columbia, South Carolina 29201
Re: SCE&G Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for South Carolina
Electric & Gas Company, a South Carolina corporation (the
"Company"), and SCE&G Trust I, a Delaware business trust (the
"Trust"), in connection with the matters set forth herein. At your
request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of
originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated October 8,
1997 as filed in the office of the Secretary of State of the State
of Delaware (the "Secretary of State") on October 8, 1997;
(b) The Trust Agreement of the Trust, dated as of October
8, 1997 among the Company and the trustees of the Trust named
therein;
304
<PAGE>
(c) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the
"Prospectus"), relating to the securities of the Trust representing
preferred undivided beneficial interests in the assets of the Trust
(each, a "Trust Preferred Security" and collectively, the "Trust
Preferred Securities"), as proposed to be filed by the Company and
the Trust with the Securities and Exchange Commission on or about
October 10, 1997;
(d) A form of Amended and Restated Trust Agreement of the
Trust, to be entered into among the Company, the trustees of the
Trust named therein, and the holders, from time to time, of
undivided beneficial interests in the assets of the Trust
(including Exhibits A, C and E thereto) (the "Trust Agreement"),
attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated
October 10, 1997, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through
(e) above. In particular, we have not reviewed any document (other
than the documents listed in paragraphs (a) through (e) above) that
is referred to in or incorporated by reference into the documents
reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon
the foregoing documents, the statements and information set forth
therein and the additional matters recited or assumed herein, all
of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic
originals, (ii) the conformity with the originals of all documents
submitted to us as copies or forms, and (iii) the genuineness of
all signatures.
305
<PAGE>
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate are in full force and effect
and have not been amended, (ii) except to the extent provided in
paragraph 1 below, the due creation or due organization or due
formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the
laws of the jurisdiction governing its creation, organization or
formation, (iii) the legal capacity of natural persons who are
parties to the documents examined by us, (iv) that each of the
parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations
under such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Trust Preferred Security
is to be issued by the Trust (collectively, the "Trust Preferred
Security Holders") of a certificate for such Trust Preferred
Security in the form prescribed by the Trust Agreement and the
payment for the Trust Preferred Security acquired by it, in
accordance with the Trust Agreement and the Registration
Statement, and (vii) that the Trust Preferred Securities are issued
and sold to the Trust Preferred Security Holders in accordance with
the Trust Agreement and the Registration Statement. We have not
participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we
have not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations
relating thereto. Our opinions are rendered only with respect to
Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have
considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business
Trust Act.
2. The Trust Preferred Securities will represent valid
and, subject to the qualifications set forth in paragraph 3 below,
fully paid and nonassessable undivided beneficial interests in the
assets of the Trust.
306
<PAGE>
3. The Trust Preferred Security Holders, as beneficial
owners of the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private corporations
for profit organized under the General Corporation Law of the State
of Delaware. We note that the Trust Preferred Security Holders may
be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration
Statement. In addition, we hereby consent to the use of our name
under the heading "Validity" in the Prospectus. In giving the
foregoing consents, we do not thereby admit that we come within
the category of Persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any
other Person for any purpose.
Very truly yours,
s/RICHARDS, LAYTON & FINGER
RICHARDS, LAYTON & FINGER
307
<PAGE>
EXHIBIT 8(A)
Form of Opinion of
McNair Law Firm, P.A.,
Counsel to the Company
October 10, 1997
South Carolina Electric & Gas Company
1426 Main Street
Columbia, South Carolina 29201
SCE&G Trust I
c/o South Carolina Electric & Gas Company
1426 Main Street
Columbia, South Carolina 29201
Ladies and Gentlemen:
As special tax counsel to South Carolina Electric & Gas
Company and SCE&G Trust I in connection with the proposed offering
of the SCE&G Trust I Preferred Securities Series A, with an
aggregate liquidation amount of $50,000,000 (the "Securities"), and
assuming the operative documents for the Securities described in
the Prospectus included in the Registration Statement on Form S-3
(the "Registration Statement") to which this opinion is filed as an
exhibit will be performed in accordance with the terms described
therein, we hereby confirm to you our opinion as set forth under
the heading "Certain Federal Income Tax Consequences" in the
Prospectus, subject to the limitations set forth therein.
We hereby consent to the filing with the Securities and
Exchange Commission of this opinion as an exhibit to the
Registration Statement and the reference to us under the headings
"Certain Federal Income Tax Consequences" and "Validity" in the
Prospectus. By giving the foregoing consent we do not admit that
we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
s/McNair Law Firm, P.A.
McNair Law Firm, P. A.
308
<PAGE>
<TABLE>
EXHIBIT 12
SOUTH CAROLINA ELECTRIC & GAS COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<S> <C> <C> <C> <C> <C> <C> <C>
(Thousands of Dollars)
12 Months
June 30, Year Ended December 31,
1997 1996 1995 1994 1993 1992
Fixed Charges as defined:
Interest on long-term debt.................. $ 94,113 $ 94,834 $ 96,138 $ 85,368 $ 77,975 $ 79,452
Amortization of debt premium, discount and
expense (net).............................. 2,324 2,315 2,223 1,993 1,435 765
Interest on debt to affiliate............... 23 - 114 279 29 16
Other interest expense...................... 6,661 7,367 9,210 4,910 5,783 6,761
Interest component of rentals............... 2,028 2,255 2,771 2,692 2,823 923
Total Fixed Charges (A)................. $105,149 $106,771 $110,456 $ 95,242 $ 88,045 $ 87,917
Earnings, as defined:
Income...................................... $179,284 $190,482 $169,185 $152,043 $145,968 $102,163
Income taxes................................ 99,624 108,176 97,249 82,716 80,738 50,158
Total fixed charges ........................ 105,149 106,771 110,456 95,242 88,045 87,917
Total Earnings (B)...................... $384,057 $405,429 $376,890 $330,001 $314,751 $240,238
Ratio of Earnings to fixed charges (B/A)...... 3.65 3.80 3.41 3.46 3.57 2.73
</TABLE>
309
<PAGE>
Exhibit 23-A
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of South Carolina Electric & Gas Company and SCE&G Trust
I on Form S-3 of our report dated February 7, 1997, appearing in
the Annual Report on Form 10-K of South Carolina Electric & Gas
Company for the year ended December 31, 1996 and to the reference
to us under the heading "Experts" in the Prospectus, which is part
of this Registration Statement.
s/DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Columbia, South Carolina
October 10, 1997
310
<PAGE>
Exhibit 24
POWER OF ATTORNEY
The undersigned directors of South Carolina Electric & Gas
Company (the "Company"), hereby appoint W. B. Timmerman and Kevin
B. Marsh, and each of them severally, as the attorney-in-fact of
the undersigned, to sign in the name(s) and on behalf of the
undersigned, in any and all capacities stated therein, and to file
with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, a Registration Statement on Form S-3, and
any and all amendments thereto, with respect to the issuance and
sale of up to $55,000,000 principal amount of the Company's Junior
Subordinated Deferrable Interest Debentures, $55,000,000
liquidation amount of SCE&G Trust I's Trust Preferred Securities
(the "Trust Preferred Securities") and the Guarantee of the Company
with respect to the Trust Preferred Securities.
Dated October 3, 1997
Columbia, South Carolina
s/B. L. Amick s/Lawrence M. Gressette
B. L. Amick Lawrence M. Gressette
Director Director
s/J. A. Bennett s/W. Hayne Hipp
J. A. Bennett W. Hayne Hipp
Director Director
s/W. B. Bookhart, Jr. s/Lynne M. Miller
W. B. Bookhart, Jr. Lynne M. Miller
Director Director
s/W. T. Cassels, Jr. s/F. Creighton McMaster
W. T. Cassels, Jr. F. Creighton McMaster
Director Director
s/Hugh M. Chapman s/John B. Rhodes
Hugh M. Chapman John B. Rhodes
Director Director
s/Elaine T. Freeman s/Maceo K. Sloan
Elaine T. Freeman Maceo K. Sloan
Director Director
311
EXHIBIT 25
================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
SOUTH CAROLINA ELECTRIC & GAS COMPANY
(Exact name of obligor as specified in its charter)
South Carolina 57-0248695
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1426 Main Street
Columbia, South Carolina 29201
(Address of principal executive offices) (Zip code)
______________________
Junior Subordinated Deferrable Interest Debentures
(Title of the indenture securities)
312
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a)Name and address of each examining or supervising authority to which
it is subject.
____________________________________________________________
Name Address
------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New
York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
313
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 8th day of October, 1997.
THE BANK OF NEW YORK
By: /S/THOMAS E. TABOR
Name: THOMAS E. TABOR
Title: ASSISTANT TREASURER
314
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
June 30, 1997, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions of
the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 7,769,502
Interest-bearing balances .......... 1,472,524
Securities:
Held-to-maturity securities ........ 1,080,234
Available-for-sale securities ...... 3,046,199
Federal funds sold and Securities pur-
chased under agreements to resell...... 3,193,800
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................35,352,045
LESS: Allowance for loan and
lease losses ..............625,042
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 34,726,574
Assets held in trading accounts ...... 1,611,096
Premises and fixed assets (including
capitalized leases) ................ 676,729
Other real estate owned .............. 22,460
Investments in unconsolidated
subsidiaries and associated
companies .......................... 209,959
Customers' liability to this bank on
acceptances outstanding ............ 1,357,731
Intangible assets .................... 720,883
Other assets ......................... 1,627,267
Total assets ......................... $57,514,958
LIABILITIES
Deposits:
In domestic offices ................ $26,875,596
Noninterest-bearing ......11,213,657
Interest-bearing .........15,661,939
315
<PAGE>
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 16,334,270
Noninterest-bearing .........596,369
Interest-bearing .........15,737,901
Federal funds purchased and Securities
sold under agreements to repurchase. 1,583,157
Demand notes issued to the U.S.
Treasury ........................... 303,000
Trading liabilities .................. 1,308,173
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,383,570
With remaining maturity of more than
one year through three years.......... 0
With remaining maturity of more than
three years ......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,377,244
Subordinated notes and debentures .... 1,018,940
Other liabilities .................... 1,732,792
Total liabilities .................... 52,937,421
EQUITY CAPITAL
Common stock ........................ 1,135,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,721,258
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 1,948
Cumulative foreign currency transla-
tion adjustments .................. ( 12,272)
Total equity capital ................ 4,577,537
Total liabilities and equity
capital ........................... $57,514,958
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of Condition
has been prepared in conformance with the instructions issued by the
Board of Governors of the Federal Reserve System and is true to the
best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors of
the Federal Reserve System and is true and correct.
Alan R. Griffith
J. Carter Bacot
Thomas A. Renyi Directors
316
<PAGE>
==========================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
SCE&G TRUST I
(Exact name of obligor as specified in its charter)
Delaware 58-6353075
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
c/o South Carolina Electric & Gas Company,
1426 Main Street
Columbia, South Carolina 29201
(Address of principal executive offices) (Zip code)
______________________
Trust Preferred Securities
(Title of the indenture securities)
========================================================================
317
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
- ------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
318
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The
Bank of New York, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 9th day of October, 1997.
THE BANK OF NEW YORK
By: /S/THOMAS E. TABOR
Name: THOMAS E. TABOR
Title: ASSISTANT TREASURER
319
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
June 30, 1997, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions of
the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 7,769,502
Interest-bearing balances .......... 1,472,524
Securities:
Held-to-maturity securities ........ 1,080,234
Available-for-sale securities ...... 3,046,199
Federal funds sold and Securities pur-
chased under agreements to resell...... 3,193,800
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................35,352,045
LESS: Allowance for loan and
lease losses ..............625,042
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 34,726,574
Assets held in trading accounts ...... 1,611,096
Premises and fixed assets (including
capitalized leases) ................ 676,729
Other real estate owned .............. 22,460
Investments in unconsolidated
subsidiaries and associated
companies .......................... 209,959
Customers' liability to this bank on
acceptances outstanding ............ 1,357,731
Intangible assets .................... 720,883
Other assets ......................... 1,627,267
Total assets ......................... $57,514,958
LIABILITIES
Deposits:
In domestic offices ................ $26,875,596
Noninterest-bearing ......11,213,657
Interest-bearing .........15,661,939
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 16,334,270
320
<PAGE>
Noninterest-bearing .........596,369
Interest-bearing .........15,737,901
Federal funds purchased and Securities
sold under agreements to repurchase. 1,583,157
Demand notes issued to the U.S.
Treasury ........................... 303,000
Trading liabilities .................. 1,308,173
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,383,570
With remaining maturity of more than
one year through three years.......... 0
With remaining maturity of more than
three years ......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,377,244
Subordinated notes and debentures .... 1,018,940
Other liabilities .................... 1,732,792
Total liabilities .................... 52,937,421
EQUITY CAPITAL
Common stock ........................ 1,135,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,721,258
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 1,948
Cumulative foreign currency transla-
tion adjustments .................. ( 12,272)
Total equity capital ................ 4,577,537
Total liabilities and equity
capital ........................... $57,514,958
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of Condition
has been prepared in conformance with the instructions issued by the
Board of Governors of the Federal Reserve System and is true to the
best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors of
the Federal Reserve System and is true and correct.
Alan R. Griffith
J. Carter Bacot
Thomas A. Renyi Directors
321
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FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification
no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
SOUTH CAROLINA ELECTRIC & GAS COMPANY
(Exact name of obligor as specified in its charter)
South Carolina 57-0248695
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1426 Main Street
Columbia, South Carolina 29201
(Address of principal executive offices) (Zip code)
______________________
Guarantee of Trust Preferred Securities of
SCE&G Trust I
(Title of the indenture securities)
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322
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1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
- ----------------------------------------------------------------
Name Address
----------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the "Act") and 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
323
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SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in The City of New York, and State of New York, on the 9th day of
October, 1997.
THE BANK OF NEW YORK
By: /S/THOMAS E. TABOR
Name: THOMAS E. TABOR
Title: ASSISTANT TREASURER
324
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Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30,
1997, published in accordance with a call made by the Federal Reserve Bank
of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 7,769,502
Interest-bearing balances .......... 1,472,524
Securities:
Held-to-maturity securities ........ 1,080,234
Available-for-sale securities ...... 3,046,199
Federal funds sold and Securities pur-
chased under agreements to resell...... 3,193,800
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................35,352,045
LESS: Allowance for loan and
lease losses ..............625,042
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 34,726,574
Assets held in trading accounts ...... 1,611,096
Premises and fixed assets (including
capitalized leases) ................ 676,729
Other real estate owned .............. 22,460
Investments in unconsolidated
subsidiaries and associated
companies .......................... 209,959
Customers' liability to this bank on
acceptances outstanding ............ 1,357,731
Intangible assets .................... 720,883
Other assets ......................... 1,627,267
Total assets ......................... $57,514,958
LIABILITIES
Deposits:
In domestic offices ................ $26,875,596
Noninterest-bearing ......11,213,657
Interest-bearing .........15,661,939
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 16,334,270
Noninterest-bearing .........596,369
325
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Interest-bearing .........15,737,901
Federal funds purchased and Securities
sold under agreements to repurchase. 1,583,157
Demand notes issued to the U.S.
Treasury ........................... 303,000
Trading liabilities .................. 1,308,173
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,383,570
With remaining maturity of more than
one year through three years.......... 0
With remaining maturity of more than
three years ......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,377,244
Subordinated notes and debentures .... 1,018,940
Other liabilities .................... 1,732,792
Total liabilities .................... 52,937,421
EQUITY CAPITAL
Common stock ........................ 1,135,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,721,258
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 1,948
Cumulative foreign currency transla-
tion adjustments .................. ( 12,272)
Total equity capital ................ 4,577,537
Total liabilities and equity
capital ........................... $57,514,958
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of Condition
has been prepared in conformance with the instructions issued by the
Board of Governors of the Federal Reserve System and is true to the
best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors of
the Federal Reserve System and is true and correct.
Alan R. Griffith
J. Carter Bacot
Thomas A. Renyi Directors
326
