Exhibit 4-K
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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)
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Dated as of October 28, 1997
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SCE&G TRUST I
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198
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.
199
TABLE OF CONTENTS
ARTICLE I
DEFINED TERMS 8
SECTION 1.1. Definitions. 8
ARTICLE II
CONTINUATION OF THE ISSUER TRUST 18
SECTION 2.1. Name. 18
SECTION 2.2. Office of the Delaware Trustee; Principal
Place of Business 18
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses 18
SECTION 2.4. Issuance of the Trust Preferred Securities 19
SECTION 2.5. Issuance of the Common Securities;
Subscription and Purchase of Debentures 19
SECTION 2.6. Continuation of Trust 19
SECTION 2.7. Authorization to Enter into Certain
Transactions 20
SECTION 2.8. Assets of Trust 24
SECTION 2.9. Title to Trust Property 24
ARTICLE III
PAYMENT ACCOUNT 24
SECTION 3.1. Payment Account 24
ARTICLE IV
REDEMPTION 25
SECTION 4.1. Distributions 25
SECTION 4.2. Redemption 26
SECTION 4.3. Subordination of Common Securities 28
SECTION 4.4. Payment Procedures 29
SECTION 4.5. Tax Returns and Reports 29
SECTION 4.6. Payment of Taxes, Duties, Etc. of
the Issuer Trust 29
SECTION 4.7. Payments under Indenture or Pursuant
to Direct Actions 30
ARTICLE V
TRUST SECURITIES CERTIFICATES 30
SECTION 5.1. Initial Ownership 30
SECTION 5.2. The Trust Securities Certificates 30
SECTION 5.3. Execution and Delivery of Trust Securities
Certificates 31
SECTION 5.4. Book-Entry Trust Preferred Securities 31
SECTION 5.5. Registration of Transfer and Exchange of
Trust Preferred Securities Certificates 33
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates 35
SECTION 5.7. Persons Deemed Holders 36
SECTION 5.8. Access to List of Holders' Names
and Addresses 36
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SECTION 5.9. Maintenance of Office or Agency 36
SECTION 5.10. Appointment of Paying Agent 36
SECTION 5.11. Ownership of Common Securities by Depositor 37
SECTION 5.12. Notices to Clearing Agency 37
SECTION 5.13. Rights of Holders; Waivers of Past Defaults 38
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING 40
SECTION 6.1. Limitations on Voting Rights 40
SECTION 6.2. Notice of Meetings 42
SECTION 6.3. Meetings of Holders of the Trust Preferred
Securities 42
SECTION 6.4. Voting Rights 42
SECTION 6.5. Proxies, etc 43
SECTION 6.6. Holder Action by Written Consent 43
SECTION 6.7. Record Date for Voting and Other Purposes 43
SECTION 6.8. Acts of Holders 44
SECTION 6.9. Inspection of Records 45
ARTICLE VII
REPRESENTATIONS AND WARRANTIES 45
SECTION 7.1. Representations and Warranties of the
Property Trustee and the Delaware Trustee 45
SECTION 7.2. Representations and Warranties of Depositor 46
ARTICLE VIII
THE ISSUER TRUSTEES 47
SECTION 8.1. Certain Duties and Responsibilities 47
SECTION 8.2. Certain Notices 50
SECTION 8.3. Certain Rights of Property Trustee 50
SECTION 8.4. Not Responsible for Recitals or Issuance
of Securities 52
SECTION 8.5. May Hold Securities 53
SECTION 8.6. Compensation; Indemnity; Fees 53
SECTION 8.7. Corporate Property Trustee Required;
Eligibility of Issuer Trustees 54
SECTION 8.8. Conflicting Interests 54
SECTION 8.9. Co-Trustees and Separate Trustee 55
SECTION 8.10. Resignation and Removal; Appointment of
Successor 56
SECTION 8.11. Acceptance of Appointment by Successor 58
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business 59
SECTION 8.13. Preferential Collection of Claims Against
Depositor or Issuer Trust 59
SECTION 8.14. Property Trustee May File Proofs of Claim 59
SECTION 8.15. Reports by Property Trustee 60
SECTION 8.16. Reports to the Property Trustee 61
SECTION 8.17. Evidence of Compliance with Conditions
Precedent 61
SECTION 8.18. Number of Issuer Trustees 61
SECTION 8.19. Delegation of Power 61
SECTION 8.20. Appointment of Administrative Trustees 62
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ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER 63
SECTION 9.1. Dissolution Upon Expiration Date 63
SECTION 9.2. Early Dissolution 63
SECTION 9.3. Termination 63
SECTION 9.4. Liquidation 64
SECTION 9.5. Mergers, Consolidations, Amalgamations
or Replacements of Issuer Trust 65
ARTICLE X
MISCELLANEOUS PROVISIONS 67
SECTION 10.1. Limitation of Rights of Holders 67
SECTION 10.2. Amendment 67
SECTION 10.3. Separability 68
SECTION 10.4. Governing Law 68
SECTION 10.5. Payments Due on Non-Business Day 69
SECTION 10.6. Successors 69
SECTION 10.7. Headings 69
SECTION 10.8. Reports, Notices and Demands 69
SECTION 10.9. Agreement Not to Petition 70
SECTION 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act 70
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee Agreement and Indenture 71
Exhibit A Certificate of Trust
Exhibit B Form of Letter of Representations
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Trust Preferred Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of October 28, 1997,
among (i) South Carolina Electric & Gas Company, a South Carolina
corporation (including any successors or assigns, the "Depositor"), (ii)
The Bank of New York, a New York banking corporation, as property
trustee (in such capacity, the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) The Bank of New York (Delaware), a Delaware banking
corporation, as Delaware trustee (in such capacity, the "Delaware
Trustee"), (iv) M. R. Cannon, an individual, K. B. Marsh, an individual,
and H. T. Arthur, an individual, each of whose address is c/o South
Carolina Electric & Gas Company, 1426 Main Street, Columbia, South
Carolina 29201 (each an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee
and the Administrative Trustees being referred to collectively as the
"Issuer Trustees") and (iv) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, Delaware Trustee and an Administrative
Trustee have heretofore duly declared and established a business trust
pursuant to the Delaware Business Trust Act (as defined herein) by
entering into the Trust Agreement, dated as of October 8, 1997 (the
"Original Trust Agreement") and by the execution and filing with the
Secretary of State of the State of Delaware of the Certificate of Trust,
filed on October 8, 1997, attached as Exhibit A; and
WHEREAS, the Depositor and the Issuer Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein
to provide for, among other things, (i) the issuance of the Common
Securities (as defined herein) by the Issuer Trust to the Depositor,
(ii) the issuance and sale of the Trust Preferred Securities (as defined
herein) by the Issuer Trust pursuant to the Underwriting Agreement (as
defined herein), (iii) the acquisition by the Issuer Trust from the
Depositor of all of the right, title and interest in the Debentures (as
defined herein) and (iv) the appointment of the Property Trustee and the
Administrative Trustees;
NOW, THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, each party, for
the benefit of the other parties and for the benefit of the Holders,
hereby amends and restates the Original Trust Agreement in its entirety
and agrees as follows:
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;
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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 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.
"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:
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(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.
"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.
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"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.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit C.
"Common Security" means a common undivided beneficial interest in
the assets of the Issuer Trust, having a Liquidation Amount of $25 and
having the rights provided therefor in this Trust Agreement, including
the right to receive Distributions and a Liquidation Distribution to the
extent provided herein.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal office of the Property Trustee located
in New York, New York, and (ii) when used with respect to the Debenture
Trustee, the principal office of the Debenture Trustee located in
Wilmington, Delaware.
"Debenture Event of Default" means any "Event of Default" specified
in Section 5.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures
to be redeemed under the Indenture, the date fixed for redemption of
such Debentures under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the
Indenture.
"Debenture Trustee" means the Person identified as the "Trustee" in
the Indenture, solely in its capacity as Trustee pursuant to the
Indenture and not in its individual capacity, or its successor in
interest in such capacity, or any successor Trustee appointed as
provided in the Indenture.
"Debentures" means the Depositor's 7.55% Junior Subordinated
Deferrable Interest Debentures, Series A, issued pursuant to the
Indenture.
206
"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.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended
from time to time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement, solely in its capacity
as Delaware Trustee of the trust heretofore formed and continued
hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor Delaware Trustee appointed
as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever
the reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Issuer Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Issuer Trustees in this
Trust Agreement (other than those specified in clause (b) or (c) above)
and continuation of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Issuer
Trustees and to the Depositor by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Trust Preferred
Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee if a successor Property Trustee has not been appointed
within 90 days thereof.
207
"Exchange Act" means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, as guarantee
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the holders of the Trust Preferred
Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities are registered in the Securities Register; any such Person
shall be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of
October 28, 1997, between the Depositor and the Debenture Trustee, as
trustee, as amended or supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940,
or any successor statute thereto, in each case as amended from time to
time.
"Issuer Trust" means the Delaware business trust known as "SCE&G
Trust I" which was formed on October 8, 1997 under the Delaware Business
Trust Act pursuant to the Original Trust Agreement and the filing of the
Certificate of Trust, and continued pursuant to this Trust Agreement.
"Issuer Trustees" has the meaning specified in the preamble to this
Trust Agreement.
"Letter of Representations" means the agreement among the Issuer
Trust, the Property Trustee and DTC, as the initial Clearing Agency,
dated as of the Closing Date, substantially in the form attached as
Exhibit B, as the same may be amended and supplemented from time to
time.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed
of trust, adverse ownership interest, hypothecation, assignment,
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"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.
208
"Liquidation Date" means the date of the dissolution, winding-up or
termination of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section
9.4(d).
"Majority in Liquidation Amount of the Trust Preferred Securities"
or "Majority in Liquidation Amount of the Common Securities" means,
except as provided by the Trust Indenture Act, Trust Preferred
Securities or Common Securities, as the case may be, representing more
than 50% of the aggregate Liquidation Amount of all then Outstanding
Trust Preferred Securities or Common Securities, as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President, the Chief Executive Officer, the Chief
Financial Officer, any Vice President or the Treasurer and by the
Secretary or an Assistant Secretary of the Depositor and delivered to
the Issuer Trustees. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement by each officer signing the Officers'
Certificate that such officer has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by such officer in rendering the
Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(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
209
(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.
"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.
210
"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 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.
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"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.
"Underwriters" means Credit Suisse First Boston and PaineWebber
Incorporated as the underwriters under the Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated
October 22, 1997, among the Issuer Trust, the Depositor and the
underwriter or underwriters named therein, as the same may be amended
from time to time.
"Vice President," when used with respect to the Depositor, means
any duly appointed vice president, whether or not designated by a number
or a word or words added before or after the title "vice president."
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.
The trust continued hereby shall be known as "SCE&G Trust I," as
such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and
the other Issuer Trustees, in which name the Issuer Trustees may conduct
the business of the Issuer Trust, make and execute contracts and other
instruments on behalf of the Issuer Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is
White Clay Center, Rte 273, Newark, Delaware 19711, Attention:
Corporate Trust Administration, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Holders, the Depositor, the Property Trustee and the Administrative
Trustees. The principal executive office of the Issuer Trust is South
Carolina Electric & Gas Company, 1426 Main Street, Columbia, South
Carolina 29201, Attention: Chief Financial Officer.
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SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Trust Agreement of the sum of
$10, which constituted the initial Trust Property. The Depositor shall
pay organizational expenses of the Issuer Trust as they arise or shall,
upon request of any Issuer Trustee, promptly reimburse such Issuer
Trustee for any such expenses paid by such Issuer Trustee. The Depositor
shall make no claim upon the Trust Property for the payment of such
expenses.
SECTION 2.4. Issuance of the Trust Preferred Securities.
The Depositor, both on its own behalf and on behalf of the Issuer
Trust pursuant to the Original Trust Agreement, executed and delivered
the Underwriting Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, an Administrative Trustee, on behalf
of the Issuer Trust, shall manually execute in accordance with Sections
5.2, 5.3 and 8.9(a) and the Property Trustee shall deliver to the
Underwriters, Trust Preferred Securities Certificates, registered in the
names requested by the Underwriters, evidencing an aggregate of
2,000,000 Trust Preferred Securities having an aggregate Liquidation
Amount of $50,000,000, against receipt of the aggregate purchase price
of such Trust Preferred Securities of $50,000,000, by the Property
Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription
and Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Issuer Trust,
shall execute in accordance with Sections 5.2, 5.3 and 8.9(a) and the
Property Trustee shall deliver to the Depositor, Common Securities
Certificates, registered in the name of the Depositor, evidencing an
aggregate of 61,856 Common Securities having an aggregate Liquidation
Amount of $1,546,400, against receipt of the aggregate purchase price of
such Common Securities of $1,546,400, to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the
Issuer Trust, shall subscribe for and purchase from the Depositor the
Debentures, registered in the name of the Property Trustee on behalf of
the Issuer Trust and having an aggregate principal amount equal to
$51,546,400, and, in satisfaction of the purchase price for such
Debentures, the Property Trustee, on behalf of the Issuer Trust, shall
deliver to the Depositor the sum of $51,546,400 (being the sum of the
amounts delivered to the Property Trustee pursuant to (i) the second
sentence of Section 2.4 and (ii) the first sentence of this Section
2.5).
SECTION 2.6. Continuation of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale to
acquire the Debentures and (b) to engage in those activities necessary
or incidental thereto. The Depositor hereby reaffirms the appointment of
the Delaware Trustee and appoints and reaffirms the appointment of, as
the case may be, the Administrative Trustees as trustees of the Issuer
Trust, to have all the rights, powers and duties to the extent set forth
herein, and the respective Issuer Trustees hereby accept such
appointment. The Property Trustee hereby
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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;
(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;
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(F) consenting to the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance
with this Trust Agreement (which consent shall not be
unreasonably withheld);
(G) executing the Trust Securities on behalf of the
Issuer Trust in accordance with this Trust Agreement;
(H) executing and delivering closing certificates, if
any, pursuant to the Underwriting Agreement and applying for
a taxpayer identification number for the Issuer Trust; and
(I) taking any action incidental to the foregoing as
the Issuer Trustees may from time to time determine to be
necessary or advisable to give effect to the terms of this
Trust Agreement.
(ii) As among the Issuer Trustees, the Property Trustee
shall have the power, duty and authority to act on behalf of
the Issuer Trust with respect to the following matters:
(A) establishing the Payment Account;
(B) receiving the Debentures;
(C) collecting interest, principal and any other
payments made in respect of the Debentures and
holding such amounts in the Payment Account;
(D) distributing through the Paying Agent of amounts
distributable to the Holders in respect of the Trust
Securities;
(E) exercising all of the rights, powers and
privileges of a holder of the Debentures;
(F) sending notices of default and other information
regarding the Trust Securities and the Debentures
to theHolders 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;
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(J) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such term
if such Event of Default is by or with respect to the Property
Trustee) taking any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary
or advisable to give effect to the terms of this Trust
Agreement and protect and conserve the Trust Property for the
benefit of the Holders (without consideration of the effect of
any such action on any particular Holder); and
(K) exercising any of the duties, liabilities,
powers or the authority of the Administrative Trustees set
forth in Section 2.7(a)(i)(E) and (I) herein; and in the event
of a conflict between the action of the Administrative
Trustees and the action of the Property Trustee, the action of
the Property Trustee shall prevail.
(b) So long as this Trust Agreement remains in effect, the
Issuer Trust (or the Issuer Trustees acting on behalf of the Issuer
Trust) shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby. In
particular, the Issuer Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii)
sell, assign, transfer, exchange, mortgage, pledge, setoff 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
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actions that must be taken by or on behalf of the Issuer Trust, and
the preparation for execution and filing of any documents to be
executed and filed by the Issuer Trust or on behalf of the Issuer
Trust, as the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such states in connection
with the sale of the Trust Preferred Securities;
(iii) the preparation for filing by the Issuer Trust
and execution on behalf of the Issuer Trust of an application or
applications to such securities exchange or exchanges as shall be
determined by Depositor for listing upon notice of issuance of
any Trust Preferred Securities;
(iv) the preparation for filing by the Issuer Trust
with the Commission and the execution on behalf of the Issuer
Trust of a registration statement on Form 8-A relating to the
registration of the Trust Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, including any amendments
thereto;
(v) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing for the
sale of the Trust Preferred Securities; and
(vi) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Property Trustee and the Administrative Trustees are authorized and
directed to conduct the affairs of the Issuer Trust and to operate the
Issuer Trust so that the Issuer Trust will not be deemed to be an
"investment company" required to be registered under the Investment
Company Act, and will not be taxable as a corporation or classified as
other than a grantor trust for United States federal income tax purposes
and so that the Debentures will be treated as indebtedness of the
Depositor for United States federal income tax purposes. In this
connection, each Administrative Trustee, the Property Trustee and the
Holders of at least a Majority in Liquidation Amount of the Common
Securities are authorized to take any action, not inconsistent with
applicable law, the 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 October 28, 1997, and, except
in the event (and to the extent) that the Depositor exercises its
right to defer the payment of interest on the Debentures pursuant
to the Indenture, shall be payable quarterly in arrears on March
31, June 30, September 30 and December 31 of each year, commencing
on December 31, 1997. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business Day,
then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, the payment
of such Distribution shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if
made on the date on which such payment was originally payable
(each date on which distributions are payable in accordance with
this Section 4.1(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to
Distributions payable at a rate of 7.55% per annum of the
Liquidation Amount of the Trust Securities. The amount of
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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);
(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.
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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
dates for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then upon the date of
such deposit, all rights of Holders holding Trust Securities so called
for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect of the
Trust Securities on or prior to the Redemption Date, but without
interest, and such Securities will cease to be outstanding. In the event
that any date on which any Redemption Price is payable is not a Business
Day, then payment of the Redemption Price payable on such date will be
made on the next succeeding day that is a Business Day (without any
interest or other payment in respect of any such delay), except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case, with the
same force and effect as if made on such date. In the event that payment
of the Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the
Issuer Trust or by the Depositor pursuant to the Guarantee Agreement,
Distributions on such Trust Securities will continue to accumulate, as
set forth in Section 4.1, from the Redemption Date originally
established by the Issuer Trust for such
Trust Securities to the date such Redemption Price is actually paid, in
which case the actual payment date will be the date fixed for redemption
for purposes of calculating the Redemption Price.
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(e) Subject to the priority provisions of Section 4.3(a), if
less than all the Outstanding Trust Securities are to be redeemed on a
Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated pro rata to the Common
Securities and the Trust Preferred Securities based upon the relative
Liquidation Amounts of such classes. The particular Trust Preferred
Securities to be redeemed shall be selected on a pro rata basis based
upon their respective Liquidation Amounts not more than 60 days prior to
the Redemption Date by the Property Trustee from the Outstanding Trust
Preferred Securities not previously called for redemption, provided that
so long as the Trust Preferred Securities are in book-entry-only form,
such selection shall be made in accordance with the customary procedures
for the Clearing Agency for the Trust Preferred Securities. The Property
Trustee shall promptly notify the Securities Registrar in writing of the
Trust Preferred Securities selected for redemption and, in the case of
any Trust Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this
Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Trust Preferred Securities shall relate,
in the case of any Trust Preferred Securities redeemed or to be redeemed
only in part, to the portion of the aggregate Liquidation Amount of
Trust Preferred Securities that has been or is to be redeemed.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Amounts)
on, the Redemption Price of, and the Liquidation Distribution in respect
of the Trust Securities, as applicable, shall be made, subject to the
allocation provisions of Section 4.2(e), pro rata among the Common
Securities and the Trust Preferred Securities based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any
Distribution Date, Redemption Date or Liquidation Date any Event of
Default resulting from a Debenture Event of Default specified in Section
5.1(a) or 5.1(b) of the Indenture shall have occurred and be continuing,
no payment of any Distribution (including any Additional Amounts) on,
Redemption Price of, or Liquidation Distribution in respect of any
Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid
Distributions (including any Additional Amounts) on all Outstanding
Trust Preferred Securities for all Distribution periods terminating on
or prior thereto, or in the case of payment of the Redemption Price the
full amount of such Redemption Price on all Outstanding Trust Preferred
Securities then called for redemption, or in the case of payment of the
Liquidation Distribution the full amount of such Liquidation
Distribution on all Outstanding Trust Preferred Securities, shall have
been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash
of all Distributions (including any Additional Amounts) on, or the
Redemption Price of, the Trust Preferred Securities then due and
payable.
(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
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of Default under this Trust Agreement with respect to the Trust
Preferred Securities have been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the Holders of the
Trust Preferred Securities and not on behalf of the Holders of the
Common Securities, and only the Holders of the Trust Preferred
Securities will have the right to direct the Property Trustee to act on
their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) in
respect of the Trust Preferred Securities shall be made by check mailed
to the address of the Person entitled thereto as such address shall
appear on the Securities Register or, if the Trust Preferred Securities
are held by a Clearing Agency, such Distributions shall be made to the
Clearing Agency in immediately available funds. Payments in respect of
the Common Securities shall be made in such manner as shall be mutually
agreed between the Property Trustee and the Holders of the Common
Securities.
SECTION 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be
prepared), at the Depositor's expense, and file all United States
federal, state and local tax and information returns and reports
required to be filed by or in respect of the Issuer Trust. In this
regard, the Administrative Trustees shall (i) prepare and file (or cause
to be prepared and filed) all Internal Revenue Service forms required to
be filed in respect of the Issuer Trust in each taxable year of the
Issuer Trust and (ii) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to
be provided by the Issuer Trust. The Administrative Trustees shall
provide the Depositor and the Property Trustee with a copy of all such
returns and reports promptly after such filing or furnishing. The
Issuer Trustees shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with
respect to any payments to Holders under the Trust Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer
Trust.
Upon receipt under the Debentures of Additional Sums, the Property
Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Issuer
Trust by the United States or any other taxing authority, which were
included in such Additional Sums.
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.
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ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the creation of the Issuer Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the
Issuer Trust.
SECTION 5.2. The Trust Securities Certificates.
(a) The Trust Preferred Securities Certificates shall be issued
in minimum denominations of $25 Liquidation Amount and integral
multiples of $25 in excess thereof and the Common Securities
Certificates shall be issued in denominations of $25 Liquidation Amount
and integral multiples thereof. The Trust Securities Certificates shall
be executed on behalf of the Issuer Trust by manual signature of at
least one Administrative Trustee. Trust Securities Certificates bearing
the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the
Issuer Trust, shall be validly issued and entitled to the benefits of
this Trust Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the delivery of such
Trust Securities Certificates or did not hold such offices at the date
of delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Holder and shall be entitled
to the rights and subject to the obligations of a Holder hereunder upon
due registration of such Trust Securities Certificate in such
transferee's name pursuant to Section 5.5.
(b) Upon their original issuance, Trust Preferred Securities
Certificates shall be issued in the form of one or more Book-Entry Trust
Preferred Securities Certificates registered in the name of DTC, as
Clearing Agency, or its nominee and deposited with DTC or a custodian
for DTC for credit by DTC to the respective accounts of the Owners
thereof (or such other accounts as they may direct).
(c) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
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.
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SECTION 5.4. Book-Entry Trust Preferred Securities.
(a) Each Book-Entry Trust Preferred Securities Certificate
issued under this Trust Agreement shall be registered in the name of the
Clearing Agency or a nominee thereof and delivered to such Clearing
Agency or a nominee thereof or custodian therefor and each such Book-
Entry Trust Preferred Securities Certificate shall constitute a single
Trust Preferred Securities Certificate for all purposes of this
Agreement.
(b) Notwithstanding any other provision in this Trust
Agreement, no Book-Entry Trust Preferred Securities Certificate may be
exchanged in whole or in part for Trust Preferred Securities
Certificates registered, and no transfer of a Book-Entry Trust Preferred
Securities Certificate in whole or in part may be registered, in the
name of any Person other than the Clearing Agency for such Book-Entry
Trust Preferred Securities Certificates or a nominee thereof unless (i)
the Clearing Agency advises the Issuer Trust in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Book-Entry Trust Preferred
Securities Certificates, and is unable to locate a qualified successor
or a qualified successor shall not have been appointed, or the Clearing
Agency ceases to be a clearing agency registered under the Exchange Act
at a time when it is required to be so registered to act as such
clearing agent, (ii) the Issuer Trust at its option determines that a
Book Entry Trust Preferred Securities Certificate shall be so
exchangeable or (iii) a Debenture Event of Default has occurred and is
continuing. Upon the occurrence of any event specified in clause (i),
(ii) or (iii) above, the Property Trustee shall notify the Clearing
Agency and instruct the Clearing Agency to notify all Owners of Book-
Entry Trust Preferred Securities, the Delaware Trustee and the
Administrative Trustees of the occurrence of such event and of the
availability of the Definitive Trust Preferred Securities Certificates
to Owners of such class or classes, as applicable, requesting the same.
(c) If any Book-Entry Trust Preferred Securities Certificate is
to be exchanged for other Trust Preferred Securities Certificates or
cancelled in part, or if any other Trust Preferred Securities
Certificate is to be exchanged in whole or in part for Book-Entry Trust
Preferred Securities represented by a Book-Entry Trust Preferred
Securities Certificate, then either (i) such Book-Entry Trust Preferred
Securities Certificate shall be so surrendered for exchange or
cancellation as provided in this Article V or (ii) the aggregate
Liquidation Amount represented by such Book-Entry Trust Preferred
Securities Certificate shall be reduced, subject to Section 5.2, or
increased by an amount equal to the Liquidation Amount represented by
that portion of the Book-Entry Trust Preferred Securities Certificate to
be so exchanged or cancelled, or equal to the Liquidation Amount
represented by such other Trust Preferred Securities Certificates to be
so exchanged for Book-Entry Trust Preferred Securities represented
thereby, as the case may be, by means of an appropriate adjustment made
on the records of the Securities Registrar, whereupon the Property
Trustee, in accordance with the Applicable Procedures, shall instruct
the Clearing Agency or its authorized representative to make a
corresponding adjustment to its records. Upon surrender to the
Administrative Trustees or the Securities Registrar of the Book-Entry
Trust Preferred Securities Certificate or Certificates by the Clearing
Agency, accompanied by registration instructions, the Administrative
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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.
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.
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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.
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).
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(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).
(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
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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.
SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee, the Delaware Trustee or the
Administrative Trustees accountable by reason of the disclosure of its
name and address, regardless of the source from which such information
was derived.
SECTION 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrative Trustees, which consent shall not be unreasonably
withheld, an office or offices or agency or agencies where Trust
Preferred Securities Certificates may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the
Issuer Trustees in respect of the Trust Securities Certificates may
be served. The Administrative Trustees initially designate South
Carolina Electric & Gas Company, 1426 Main Street, Columbia, South
Carolina 29201 Attention: Treasurer, as its office and agency for
such purposes. The Property Trustee shall give prompt written notice
to the Depositor, the Administrative Trustees and to the Holders of
any change in the location of the Securities Register or any such
office or agency.
SECTION 5.10. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the
Payment Account and shall report the amounts of such Distributions to
the Property Trustee and the Administrative Trustees. Any Paying Agent
shall have the revocable power to withdraw funds from the Payment
Account solely for the purpose of making the Distributions referred
to above. The Administrative Trustees may revoke such power and
remove the Paying Agent in their sole discretion. The Paying Agent
shall initially be the Bank. Any Person acting as Paying Agent shall
be permitted to resign as Paying Agent upon 30 days' written notice
to the Administrative Trustees and the Property Trustee. If the Bank
shall no longer be the Paying Agent or a successor Paying Agent shall
resign or its authority to act be revoked, the Administrative Trustees
shall appoint a successor (which shall be a bank or trust company) to
act as Paying Agent.
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Such successor Paying Agent or any additional Paying Agent appointed
by the Administrative Trustees shall execute and deliver to the Issuer
Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Issuer Trustees that as
Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the Holders in
trust for the benefit of the Holders entitled thereto until such sums
shall be paid to such Holders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession
to the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6
herein shall apply to the Bank also in its role as Paying Agent, for
so long as the Bank shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any
reference in this Agreement to the Paying Agent shall include any co-
paying agent unless the context requires otherwise.
SECTION 5.11. Ownership of Common Securities by Depositor.
On the Closing Date, the Depositor shall acquire, and thereafter
shall retain, beneficial and record ownership of the Common
Securities. The Depositor may not transfer the Common Securities
except (i) in connection with a consolidation or merger of the
Depositor into another Person or any conveyance, transfer or lease by
the Depositor of its properties and assets substantially as an
entirety to any Person pursuant to Section 8.1 of the Indenture or
(ii) to the Depositor or an Affiliate thereof in compliance with
applicable law (including the Securities Act, and applicable state
securities and blue sky laws). To the fullest extent permitted by law,
any attempted transfer of the Common Securities other than as set
forth in the next proceeding sentence shall be void. The
Administrative Trustees shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating substantially
"THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN
AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT."
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders
is required under this Trust Agreement, for so long as Trust Preferred
Securities are represented by a Book-Entry Trust Preferred Securities
Certificate, the Issuer Trustees shall give all such notices and
communications specified herein to be given to the Clearing Agency and
shall have no obligations to the Owners.
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
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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,
(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
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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).
(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.
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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.
(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,
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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.
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.
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
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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.
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
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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.
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;
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(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;
(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.
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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
(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 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.
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(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.
(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.
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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 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;
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(d) any direction or act of an Administrative Trustee
contemplated by this Trust Agreement shall be sufficiently evidenced
by a certificate executed by such Administrative Trustee and setting
forth such direction or act;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or re-registration
thereof;
(f) the Property Trustee may consult with counsel of its
selection (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice of
such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon and in accordance with such
advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement
from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Holders pursuant
to this Trust Agreement, unless such Holders shall have offered to the
Property Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance
with such request or direction; provided that, nothing contained in
this Section 8.3(g) shall be taken to relieve the Property Trustee,
upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Trust Agreement;
(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
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(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.
The Property Trustee may conclusively assume that any funds held
by it hereunder are legally available unless an officer of the
Property Trustee assigned to its Corporate Trust Administration
department shall have received written notice from the Depositor, any
Holder or any other Issuer Trustee that such funds are not legally
available.
SECTION 8.5. May Hold Securities.
Any Issuer Trustee or any other agent of any Issuer Trustee or
the Issuer Trust, in its individual or any other capacity, may become
the owner or pledgee of Trust Securities and, subject to Sections 8.8
and 8.13 and except as provided in the definition of the term
"Outstanding" in Article I, may otherwise deal with the Issuer Trust
with the same rights it would have if it were not an Issuer Trustee
or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Issuer Trustees from time to time such
compensation as the parties shall agree from time to time for all
services rendered by them hereunder as may be agreed by the Depositor
and the Issuer Trustees from time to time (which compensation shall
not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
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(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.
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.
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(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.
(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:
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(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.
(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.
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.
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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.
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.
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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
(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:
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(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.
(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.
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(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
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor the
doing of such things and the execution of such instruments either in
the name of the Issuer Trust or the names of the Administrative
Trustees or otherwise as the Administrative Trustees may deem
expedient to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement.
SECTION 8.20. Appointment of Administrative Trustees.
(a) The Administrative Trustees shall initially be K. B.
Marsh, an individual, M. R. Cannon, an individual, and H. T. Arthur,
an individual, and their successors shall be appointed by the Holders
of a Majority in Liquidation Amount of the Common Securities and may
resign or may be removed by the Holders of a Majority in Liquidation
Amount of the Common Securities at any time. Upon any resignation or
removal, the Depositor shall appoint a successor Administrative
Trustee. Each Administrative Trustee shall sign an agreement agreeing
to comply with the terms of this Trust Agreement. If at any time
there is no Administrative Trustee, the Property Trustee or any Holder
who has been a Holder of Trust Securities for at least six months may
petition any court of competent jurisdiction for the appointment of
one or more Administrative Trustees.
(b) Whenever a vacancy in the number of Administrative
Trustees shall occur, until such vacancy is filled by the appointment
of an Administrative Trustee in accordance with this Section 8.20, the
Administrative Trustees in office, regardless of their number (and not
withstanding any other provision of this Agreement), shall have all
the powers granted to the Administrative Trustees and shall discharge
all the duties imposed upon the Administrative Trustees by this Trust
Agreement.
(c) Notwithstanding the foregoing or any other provision of
this Trust Agreement, if any Administrative Trustee who is a natural
person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by the unanimous acts of the remaining
Administrative Trustees, if there were at least two of them prior to
such vacancy, and by the Depositor, if there were not two such
Administrative Trustees immediately prior to such vacancy (with the
successor being a Person who satisfies the eligibility requirement for
Administrative Trustees set forth in Section 8.7).
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ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically
dissolve on October 1, 2052 (the "Expiration Date").
SECTION 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early
Dissolution Event":
(a) the occurrence of a Bankruptcy Event in respect of, or
the dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from all
of the Holders of the Common Securities at any time to dissolve the
Issuer Trust and to distribute the Debentures to Holders in exchange
for the Trust Preferred Securities (which direction is optional and
wholly within the discretion of the Holders of the Common Securities);
(c) the redemption of all of the Trust Preferred Securities
in connection with the redemption of all the Debentures;
(d) the entry of an order for dissolution of the Issuer Trust
by a court of competent jurisdiction; and
(e) the expiration of the term as provided in Section 9.1.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Issuer
Trustees and the Issuer Trust created and continued hereby shall
terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Holders of all amounts
required to be distributed hereunder upon the liquidation of the
Issuer Trust pursuant to Section 9.4, or upon the redemption of all
of the Trust Securities pursuant to Section 4.2; (b) the payment of
any expenses owed by the Issuer Trust; and (c) the discharge of all
administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the
Issuer Trust or the Holders.
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SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a),
(b) or (d) of Section 9.2 occurs or upon the Expiration Date, the
Issuer Trust shall be liquidated by the Issuer Trustees as
expeditiously as the Issuer Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the
Issuer Trust as provided by applicable law, to each Holder a Like
Amount of Debentures, subject to Section 9.4(d). Notice of
liquidation shall be given by the Property Trustee by first-class
mail, postage prepaid mailed not less than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities at
such Holder's address appearing in the Securities Register. All such
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be Outstanding
and any Trust Securities Certificates not surrendered for
exchange will be deemed to represent a Like Amount of
Debentures; and
(iii) provide such information with respect to the
procedures by which Holders may exchange Trust Securities
Certificates for Debentures, or if Section 9.4(d) applies
receive a Liquidation Distribution, as Administrative Trustees
or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order
to effect the liquidation of the Issuer Trust and distribution of the
Debentures to Holders, the Property Trustee, either itself acting as
exchange agent or through the appointment of a separate exchange
agent, shall establish a record date for such distribution (which
shall be not more than 30 days prior to the Liquidation Date) and,
establish such procedures as it shall deem appropriate to effect the
distribution of Debentures in exchange for the Outstanding Trust
Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed
to be Outstanding, (ii) certificates representing a Like Amount of
Debentures will be issued to Holders of Trust Securities Certificates,
upon surrender of such Certificates to the exchange agent for
exchange, (iii) the Depositor shall use its best efforts to have the
Debentures listed on the national stock exchange, the Nasdaq National
Market or on such other exchange, interdealer quotation system or
self-regulatory organization as the Trust Preferred Securities are
then listed, (iv) any Trust Securities Certificates not so surrendered
for exchange will be deemed to represent a Like Amount of Debentures
bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Trust Securities
Certificates until such 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.
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(d) If, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Debentures
in the manner provided herein is determined by the Property Trustee
not to be practical, or if an Early Termination Event specified in
Section 9.2(c) occurs, the Trust Property shall be liquidated and the
Issuer Trust shall be wound-up or terminated by the Property Trustee
in such manner as the Property Trustee determines. In such event,
Holders will be entitled to receive out of the assets of the Issuer
Trust available for distribution to Holders, after satisfaction of
liabilities to creditors of the Issuer Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"). If, upon any such
winding up or termination, the Liquidation Distribution can be paid
only in part because the Issuer Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then,
subject to the next succeeding sentence, the amounts payable by the
Issuer Trust on the Trust Securities shall be paid on a pro rata basis
(based upon Liquidation Amounts). The Holders of the Common
Securities will be entitled to receive Liquidation Distributions upon
any such winding-up or termination pro rata (determined as aforesaid)
with Holders of Trust Preferred Securities, except that, if a
Debenture Event of Default specified in Section 5.1(a) or 5.1(b) of
the Indenture has occurred and is continuing, the Trust Preferred
Securities shall have a priority over the Common Securities as
provided in Section 4.3.
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of Issuer Trust.
The Issuer Trust may not merge with or into, consolidate,
amalgamate or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any corporation
or other body, except pursuant to this Sections 9.4 or 9.5. At the
request of the Holders of the Common Securities, with the consent of
the Administrative Trustees, the Issuer Trust may merge with or into,
consolidate, amalgamate or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to a trust
organized as such under the laws of any state; provided, that (i) such
successor entity either (a) expressly assumes all of the obligations
of the Issuer Trust with respect to the Trust Preferred Securities or
(b) substitutes for the Trust Preferred Securities other securities
having substantially the same terms as the Trust Preferred Securities
(the "Successor Securities") so long as the Successor Securities have
the 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,
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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.
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
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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.
(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.
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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.
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
256
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.
Any notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or served
to or upon the Property Trustee, the Delaware Trustee, the
Administrative Trustees or the Issuer Trust shall be given in writing
addressed to such Person as follows: (i) with respect to the Property
Trustee to The Bank of New York, 101 Barclay Street, Floor 21 West,
New York, New York 10286, Attention: Corporate Trust Administration;
(ii) with respect to the Delaware Trustee, The Bank of New York
(Delaware), White Clay Center, Rte 273, Newark, Delaware 19711,
Attention: Corporate Trust Administration; (iii) with respect to the
Administrative Trustees, to them at the address above for notices to
the Depositor, marked "Attention: Administrative Trustees of SCE&G
Trust I"; and (iv) with respect to the Issuer Trust, to its principal
office specified in Section 2.1, with a copy to the Property Trustee.
Such notice, demand or other communication to or upon the Issuer
Trust, the Property Trustee or the Administrative Trustees shall be
deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Issuer Trust, the Property Trustee or
such Administrative Trustee.
SECTION 10.9. Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the
benefit of the Holders that, until at least one year and one day after
the Issuer Trust has been terminated in accordance with Article IX,
they shall not file, or join in the filing of, a petition against the
Issuer Trust under any bankruptcy, insolvency, reorganization or other
similar law (including the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Issuer Trust under any
Bankruptcy Law. If the Depositor takes action in violation of this
Section 10.9, the Property Trustee agrees, for the benefit of Holders,
that at the expense of the Depositor, it shall file an answer with the
bankruptcy court or otherwise properly contest the filing of such
petition by the Depositor against the Issuer Trust or the commencement
of such action and raise the defense that the Depositor has agreed in
writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Issuer
Trustees or the Issuer Trust may assert.
SECTION 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust
Agreement and shall, to the extent applicable, be governed by such
provisions.
(b) The Property Trustee shall be the only Issuer Trustee
that is a trustee for the purposes of the Trust Indenture Act.
257
(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.
258
IN WITNESS WHEREOF, the parties hereto have executed this Amended
and Restated Trust Agreement.
SOUTH CAROLINA ELECTRIC & GAS COMPANY, as Depositor
By: s/M. R. Cannon
Name: M. R. Cannon
Title: Treasurer
THE BANK OF NEW YORK,
as Property Trustee
By: s/Van K. Brown
Name: Van K. Brown
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: s/Betty A. Cocozza
Name: Betty A. Cocozza
Title:
s/K. B. Marsh
Name: K. B. Marsh, as Administrative Trustee
s/M. R. Cannon
Name: M. R. Cannon, as Administrative Trustee
s/ H. T. Arthur
Name: H. T. Arthur, as Administrative Trustee
259
Exhibit A
CERTIFICATE OF TRUST
OF
SCE&G TRUST I
This Certificate of Trust of SCE&G Trust I (the
"Trust"), dated October 8, 1997, is being duly executed and
filed by the undersigned, as trustees, to form a business trust
under the Delaware Business Trust Act (12 Del. C. (S) 3801 et
seq.)
1. Name. The name of the business trust being
formed hereby is SCE&G Trust I.
2. Delaware Trustee. The name and business address
of the trustee of the Trust with a principal place of business
in the State of Delaware is The Bank of New York (Delaware),
whose business address is White Clay Center, Route 273, Newark,
Delaware 19711.
IN WITNESS WHEREOF, the undersigned, being the trustees
of the Trust, have executed this Certificate of Trust as of the
date first above written.
THE BANK OF NEW YORK (Delaware), as Delaware Trustee
By: s/WALTER N. GITLIN
Name: WALTER N. GITLIN
Title: Authorized Signatory
s/M. R. Cannon
M. R. Cannon, as Administrative Trustee
260
Exhibit B
BOOK-ENTRY-ONLY CORPORATE EQUITY ISSUES
Letter of Representations
[To be Completed by Issuer and Agent]
SCE&G TRUST I
[Name of Issuer]
The Bank of New York
[Name of Agent]
OCTOBER 23, 1997
[Date]
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street; 49th Floor
New York, NY 10041-0099
Re: 7.55% Trust Preferred Securities, Series A
(Liquidation Amount $25 per Trust Preferred
Security)
CUSIP No. 78389A203
[Issue Description, including CUSIP number]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to
certain matters relating to the above-referenced issue (the
"Securities"). Issuer is selling the Securities to Credit Suisse
First Boston Corporation and PaineWebber Incorporated (the
"Initial Purchaser") pursuant to a Underwriting Agreement dated
October 22 , 1997 (the "Document"). Initial Purchaser will take
delivery of the Securities through The Depository Trust Company
("DTC"). The Bank of New York is acting as transfer agent,
paying agent, and registrar with respect to the Securities (the
"Agent").
To induce DTC to accept the Securities as eligible for
deposit at DTC, and to act in accordance with its Rules with
respect to the Securities, Issuer and Agent make the following
representations to DTC.
1. Prior to closing on the Securities on October 28 , 1997
, there shall be deposited with DTC one Security certificate
registered in the name of DTC's nominee, Cede & Co., for each of
the Securities with the offering value set forth on Schedule A
hereto, the total of which represents 100% of the offering value
of such Securities. If, however, the offering value of any
Security exceeds $200 million, one certificate will be issued
with respect to each $200 million of offering value and an
additional certificate will be issued with respect to any
remaining offering value. Each Security certificate shall bear
the following legend:
261
Unless this certificate is presented by an
authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to Issuer
or its agent for registration of transfer,
exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such
other name as is requested by an authorized
representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an
interest herein.
If the Securities will be held by Agent, as custodian for DTC,
such Security certificate shall remain in Agent's custody
pursuant to the provisions of the FAST Balance Certificate
Agreement currently in effect between Agent and DTC.
2. Issuer: (a) understands that DTC has no obligation to,
and will not, communicate to its Participants or to any person
having an interest in the Securities any information contained in
the Security certificate(s); and (b) acknowledges that neither
DTC's Participants nor any person having an interest in the
Securities shall be deemed to have notice of the provisions of
the Security certificate(s) by virtue of submission of such
certificate(s) to DTC.
3. In the event of any solicitation of consents from or
voting by holders of the Securities, Issuer or Agent shall
establish a record date for such purposes (with no provision for
revocation of consents or votes by subsequent holders) and shall
send notice of such record date to DTC not less shall 15 calendar
days in advance of such record date. Notices to DTC pursuant to
this Paragraph by telecopy shall be sent to DTC's Reorganization
Department at (212) 709-6896 or (212) 709-6897, and receipt of
such notices shall be confirmed by telephoning (212) 709-6870.
Notices to DTC pursuant to this Paragraph by mail or by any other
means shall be sent to DTC's Reorganization Department as
indicated in Paragraph 7.
4. In the event of a stock split, recapitalization,
conversion, or any similar transaction resulting in the
cancellation of all or any part of the Securities represented
thereby, the Agent shall send DTC a notice of such event as soon
as practicable, but in no event less than five business days
prior to the effective date of such transaction.
5. In the event of a full or partial redemption, Issuer or
Agent shall send a notice to DTC specifying: (a) the amount of
the redemption or refunding; (b) in the case of a refunding, the
maturity date(s) established under the refunding; and (c) the
date such notice is to be distributed to Security holders or
published (the "Publication Date"). Such notice shall be sent to
DTC by a secure means (e.g., legible telecopy, registered or
certified mail, overnight delivery) in a timely manner designed
to assure that such notice is in DTC's possession no later than
the close of business on the business day before or, if possible,
two business days before the
262
Publication Date. Issuer or Agent shall forward such notice
either in a separate secure transmission for each CUSIP number or
in a secure transmission for multiple CUSIP numbers (if
applicable) which includes a manifest or list of each CUSIP
number submitted in that transmission. (The party sending such
notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date
shall be not less than 30 days nor more than 60 days prior to the
redemption date or, in the case of an advance refunding, the date
that the proceeds are deposited in escrow. Notices to DTC
pursuant to this Paragraph by telecopy shall be sent to DTC's
Call Notification Department at (516) 227-4039 or (516) 227-4190.
If the party sending the notice does not receive a telecopy
receipt from DTC confining that the notice has been received,
such party shall telephone (516) 227-4070. Notices to DTC
pursuant to this Paragraph by mail or by any other means shall be
sent to:
Manager; Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
6. In the event of an offering or issuance of rights with
respect to the Securities outstanding, Agent shall send DTC's
Dividend and Reorganization Departments a notice specifying: (a)
the amount of and conditions, if any, applicable to such rights
offering or issuance; (b) any applicable expiration or deadline
date, or any date by which any action on the part of holders of
such Securities is required; and (c) the Publication Date of such
notice.
The Publication Date will be as soon as practicable after
the announcement by the Company of any such offering or issuance
of rights with respect to the Securities represented thereby.
DTC requires that the Publication Date be not less than 30 days
nor more than 60 days prior to the related payment date,
distribution date, or issuance date, respectively.
Notices to DTC pursuant to this Paragraph by telecopy shall
be sent to DTC's Dividend Department at (212) 709-1623, and
receipt of such notices shall be confirmed by telephoning (212)
709-1282. Notices to DTC pursuant to the above by mail or any
other means shall be sent to:
Supervisor; Stock Dividends
Dividend Department
7 Hanover Square; 24th Floor
New York, NY 10004-2695
Notices to DTC pursuant to this Paragraph by telecopy shall
be sent to DTC's Reorganization Department at (212) 709-1093, and
receipt of such fax shall be confirmed by telephoning (2l2) 709--
1063. Notices to DTC pursuant to the above by mail or any other
means shall be sent to
Supervisor; Rights Offerings
Reorganization Department
7 Hanover Square; 23rd Floor
New York, NY 10004-2695
263
7. In the event of an invitation to tender the Securities
(including mandatory tenders, exchanges, and capital changes),
notice by Issuer or Agent to Security holders specifying the
terms of the tender and the Publication Date of such notice shall
be sent to DTC by a secure means in the manner set forth in
Paragraph 5. Notices to DTC pursuant to this Paragraph and
notices of other corporate actions by telecopy shall be sent to
DTC's Reorganization Department at (212) 709-1093 or (212)
709-1094, and receipt of such notices shall be confirmed by
telephoning (212) 709-6884. Notices to DTC pursuant to the above
by mail or by any other means shall be sent to:
Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square; 23rd Floor
New York NY 10004-2695
8. All notices and payment advices sent to DTC shall contain
the CUSIP number of the Securities (listed on Schedule A hereto)
and the accompanying description of such Securities, which, as of
the date of this letter, is " 78389A203 ."
9. Issuer or Agent shall provide written notice of dividend
payment information to a standard dividend announcement service
subscribed to by DTC as soon as the information is available. In
the event that no such service exists, Issuer or Agent shall
provide such notice directly to DTC electronically, as previously
arranged by Issuer or Agent and DTC, as soon as the payment
information is available. If electronic transmission has not been
arranged, absent any other arrangements between Issuer or Agent
and DTC, such information should be sent by telecopy to DTC's
Dividend Department at (212) 709-1723 or (212) 709-1686, and
receipt of such notices shall be confirmed by telephoning (212)
709-1270. Notices to DTC pursuant to the above by mail or by any
other means shall be sent to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York NY 10004-2695
After establishing the amount of payment to be made on the
Securities in question, Issuer or Agent will notify DTC's
Dividend Department of the payment and payment date preferably
five, but not less than two, business days prior to the effective
date for such transaction.
10. Issuer or Agent shall provide CUSIP-level detail for
dividend payments to DTC no later than noon (Eastern Time) on the
payment date.
264
11. Dividend payments and cash distributions shall be
received by Cede & Co. as nominee of DTC, or its registered
assigns, in same-day funds no later shall 2:30 p.m. (Eastern
Time) on each payment date. Absent any other arrangements between
Issuer or Agent and DTC, such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Dividend Deposit Account # O66-026776
12. Redemption payments shall be received by Cede & Co., as
nominee of DTC, or its registered assigns; in same-day funds no
later than 2:30 p.m. (Eastern Time) on payment date. Absent any
other arrangements between Agent and DTC, such funds shall be
wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Redemption Deposit Account # 066-027306
13. Reorganization payments resulting from corporate actions
(such as tender offers or mergers) shall be received by Cede &
Co., as nominee of DTC, or its registered assigns, in same-day
funds no later shall 2:30 p.m. (Eastern Time) on payment date.
Absent any other arrangements between Agent and DTC, such funds
shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Reorganization Deposit Account # O66-0276O8
14. DTC may direct Issuer or Agent to use any other number
or address as the number
or address to which notices or payments of dividends,
distributions, or redemption proceeds may be sent.
15. In the event of a redemption, acceleration, or any other
similar transaction (e.g., tender made and accepted in response
to Issuer's or Agent's invitation) necessitating a reduction in
the aggregate principal amount of Securities outstanding or an
advance refunding of part of the Securities outstanding, DTC, in
its discretion: (a) may request Issuer or Agent to issue and
authenticate a new Security certificate; or (b) may make an
appropriate notation on the Security certificate indicating the
date and amount of such reduction in the number of Securities
outstanding, except in the case of final redemption, in which
case the certificate will be presented to Issuer or Agent prior
to payment, if required.
16. In the event that Issuer determines that beneficial owners
of Securities shall be able to obtain certificated Securities,
Issuer or Agent shall notify DTC of the
265
availability of certificates. In such event, Issuer or Agent
shall transfer and exchange certificates in appropriate amounts,
as required by DTC and others.
17. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving
reasonable notice to Issuer or Agent (at which time DTC will
confirm with Issuer or Agent the aggregate principal amount of
Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking
appropriate action to make available one or more separate
certificates evidencing Securities to any DTC Participant having
Securities credited to its DTC accounts.
18. Nothing herein shall be deemed to require Agent to
advance funds on behalf of Issuer.
19. This Letter of Representations may be executed in any
number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts together
shall constitute but one and the same instrument.
20. This Letter of Representations is governed by, and shall
be construed in accordance with, the laws of the State of New
York without giving effect to principles of conflicts of Law.
21. The following riders, attached hereto, are hereby
incorporated into this Letter of Representations:
Notes:
A. If there is an Agent (as defined in this Letter of Representations), Agent
as well as Issuer must sign this Letter. If there is no Agent, in signing this
Letter Issuer itself undertakes to perform all of the obligations set forth
herein Very truly yours,
B. Schedule B contains statements that DTC believes accurately describe DTC,
the method of effecting book-entry transfers of securities distributed through
DTC, and certain related matters.
SCE&G Trust I
(Issuer)
By: s/M. R. Cannon
(Authorized Officer's Signature)
M. R. Cannon
Administrative Trustee
The Bank of New York
(Agent)
By:
(Authorized Office's Signature)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
CC: Underwriter
Underwriter's Counsel
266
SCHEDULE A
2,000,000 Trust Preferred Securities. Series A
(Liquidation
Amount $25 per Trust Preferred Security)
(Describe Issue)
CUSIP Number Share Total Offering ($) Value
78389A 203 2,000,000 50,000,000
267
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be
applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will
act as securities depository for the securities (the
"Securities"). The Securities will be issued as fully-registered
securities registered in the name of Cede & Co. (DTC's
partnership nominee). One fully-registered Security certificate
will be issued for [each issue of] the Securities, [each] in the
aggregate principal amount of such issue, and will be deposited
with DTC. [If, however, the aggregate principal amount of [any]
issue exceeds $200 million, one certificate will be issued with
respect to each $200 million of principal amount and an
additional certificate will be issued with respect to any
remaining principal amount of such issue.]
2. 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
Securities Exchange Act of 1934. DTC holds securities that its
participants ("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 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 a custodial relationship with a Direct Participant,
either directly or indirectly ("Indirect Participants"). The
Rules applicable to DTC and its Participants are on file with the
Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made
by or through Direct Participants, which will receive a credit
for the Securities on DTC's records. The ownership interest of
each actual purchaser of each Security ("Beneficial Owner") is in
turn to be recorded on the Direct and Indirect Participants'
records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to
receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings,
from the Direct or Indirect Participant through which the
Beneficial Owner entered into the transaction. Transfers of
ownership interests in the Securities are to be
268
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
Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
4. To facilitate subsequent transfers, all Securities
deposited by Participants with DTC are registered in the name of
DTC's partnership nominee, Cede & Co. The deposit of 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 Securities; DTC's records reflect
only the identity of the Direct Participants to whose accounts
such 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.
5. 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 will be governed by
arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
[6. Redemption notices shall be sent to DTC. If less than
all of the Securities within an issue are being redeemed, DTC's
practice is to determine by lot the amount of the interest of
each Direct Participant in such issue to be redeemed.]
7. Neither DTC nor Cede & Co. will consent or vote with
respect to Securities. Under its usual procedures, DTC mails an
Omnibus Proxy to 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 the
Securities are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments
on the Securities 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 corresponding detail information from
Issuer or Agent on payable date in accordance with their
respective holdings shown on DTC's records. Payments by
Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any
statutory or regulatory requirements as may be in effect from
time to time. Payment of redemption proceeds, distributions, and
dividends to Cede & Co. is the responsibility of Issuer or Agent,
disbursement of such payments to Direct Participants shall be the
responsibility of Cede & Co., and disbursement of such payments
to the Beneficial Owners shall be the responsibility of Direct
and Indirect Participants.
269
[9. A Beneficial Owner shall give notice to elect to have
its Securities purchased or tendered, through its Participant, to
[Tender/Remarketing] Agent, and shall effect delivery of such
Securities by causing the Direct Participant to transfer the
Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery
of Securities in connection with an optional tender or a
mandatory purchase will be deemed satisfied when the ownership
rights in the Securities are transferred by Direct Participants
on DTC's records and followed by a book-entry credit of tendered
securities to [Tender/Remarketing] Agents DTC account.]
10. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving
reasonable notice to Issuer or Agent. Under such circumstances,
in the event that a successor securities depository is not
obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor securities
depository). In that event, Security certificates will be printed
and delivered.
12. The information in this section concerning DTC and DTC's
book-entry system has been obtaine