EXHIBIT 3(c)
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Amended and Restated Trust Agreement
for SJG Capital Trust
among
SOUTH JERSEY GAS COMPANY
(as Depositor),
THE BANK OF NEW YORK
(as Property Trustee),
THE BANK OF NEW YORK (DELAWARE)
(as Delaware Trustee)
and
THE ADMINISTRATIVE TRUSTEE NAMED HEREIN
Dated as of March [ ], 1997
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TABLE OF CONTENTS
Page
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ARTICLE I
Defined Terms
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Section 1.01. Definitions................................................... 2
ARTICLE II
Continuation of the Trust
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Section 2.01. Name.......................................................... 10
Section 2.02. Office of the Delaware Trustee; Principal Place of Business... 10
Section 2.03. Initial Contribution of Trust Property; Expenses
of the Trust.............................................. 11
Section 2.04. Issuance of the Trust Securities.............................. 11
Section 2.05. Purchase of Debentures........................................ 12
Section 2.06. Declaration of Trust.......................................... 12
Section 2.07. Authorization to Enter into Certain Transactions.............. 13
Section 2.08. Assets of Trust............................................... 16
Section 2.09. Title to Trust Property....................................... 16
ARTICLE III
Payment Account
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Section 3.01. Payment Account............................................... 17
ARTICLE IV
Distributions; Redemption
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Section 4.01. Distributions................................................. 17
Section 4.02. Redemption.................................................... 18
Section 4.03. Subordination of Common Securities............................ 20
Section 4.04. Payment Procedures............................................ 21
Section 4.05. Tax Returns and Reports....................................... 21
Section 4.06. Payments Under Indenture...................................... 22
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ARTICLE V
Trust Securities Certificates
-----------------------------
Section 5.01. Initial Ownership............................................. 22
Section 5.02. The Trust Securities Certificates............................. 22
Section 5.03. Delivery of Trust Securities Certificates..................... 23
Section 5.04. Registration of Transfer and Exchange of Preferred
Securities Certificates................................... 23
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.............................................. 24
Section 5.06. Persons Deemed Securityholders................................ 25
Section 5.07. Access to List of Securityholders' Names and Addresses........ 25
Section 5.08. Maintenance of Office or Agency............................... 25
Section 5.09. Appointment of Paying Agent................................... 26
Section 5.10. No Transfer of Common Securities by Depositor................. 26
Section 5.11. Book-Entry Preferred Securities Certificates;
Common Securities Certificate............................. 27
Section 5.12. Definitive Preferred Securities Certificates.................. 27
Section 5.13. Rights of Securityholders..................................... 28
ARTICLE VI
Acts of Securityholders; Meetings; Voting
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Section 6.01. Limitations on Voting Rights.................................. 28
Section 6.02. Notice of Meetings............................................ 29
Section 6.03. Meetings of Preferred Securityholders......................... 29
Section 6.04. Voting Rights................................................. 30
Section 6.05. Proxies, etc. ................................................ 30
Section 6.06. Securityholder Action by Written Consent...................... 30
Section 6.07. Record Date for Voting and Other Purposes..................... 31
Section 6.08. Acts of Securityholders....................................... 31
Section 6.09. Inspection of Records......................................... 32
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ARTICLE VII
The Trustees
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Section 7.01. Certain Duties and Responsibilities........................... 32
Section 7.02. Notice of Defaults; Direct Action by Securityholders.......... 33
Section 7.03. Certain Rights of Property Trustee............................ 34
Section 7.04. Not Responsible for Recitals or Issuance of Securities........ 36
Section 7.05. May Hold Securities........................................... 36
Section 7.06. Compensation; Indemnity; Fees................................. 36
Section 7.07. Corporate Property Trustee Required; Eligibility
of Trustees............................................... 37
Section 7.08. Conflicting Interests......................................... 37
Section 7.09. Co-Trustees and Separate Trustee.............................. 38
Section 7.10. Resignation and Removal; Appointment of Successor............. 39
Section 7.11. Acceptance of Appointment by Successor........................ 41
Section 7.12. Merger, Conversion, Consolidation or Succession
to Business............................................... 42
Section 7.13. Preferential Collection of Claims Against
Depositor or Trust........................................ 42
Section 7.14. Reports by Property Trustee................................... 42
Section 7.15. Reports to the Property Trustee............................... 43
Section 7.16. Evidence of Compliance with Conditions Precedent.............. 43
Section 7.17. Statements Required in Officers' Certificate and
Opinion of Counsel........................................ 43
Section 7.18. Number of Trustees............................................ 44
Section 7.19. Delegation of Power........................................... 44
Section 7.20. Voting........................................................ 44
ARTICLE VIII
Termination and Liquidation
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Section 8.01. Termination Upon Expiration Date.............................. 45
Section 8.02. Early Termination............................................. 45
Section 8.03. Termination................................................... 45
Section 8.04. Liquidation................................................... 46
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Page
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ARTICLE IX
Mergers, Etc.
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Section 9.01. Mergers, Consolidations, Amalgamations or Replacements
of the Trust.............................................. 48
ARTICLE X
Miscellaneous Provisions
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Section 10.01. Limitation of Rights of Securityholders....................... 49
Section 10.02. Amendment..................................................... 49
Section 10.03. Severability.................................................. 51
Section 10.04. Governing Law................................................. 51
Section 10.05. Payments Due on Non-Business Day.............................. 51
Section 10.06. Successors and Assigns........................................ 51
Section 10.07. Headings...................................................... 51
Section 10.08. Reports, Notices and Demands.................................. 51
Section 10.09. Agreement Not to Petition..................................... 52
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act........ 52
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee
and Indenture............................................. 53
v
SJG Capital Trust
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the Trust Indenture Act of 1939.
Trust Indenture Act Section Trust Agreement Section
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Sec. 310(a)(1)......................................................... 7.07
(a)(2)............................................................ 7.07
(a)(3)............................................................ 7.09
(a)(4)..................................................... 2.07(a)(ii)
(b)............................................................... 7.08
Sec. 311(a)............................................................ 7.13
(b)............................................................... 7.13
Sec. 312(a)............................................................ 5.07
(b)............................................................... 5.07
(c)............................................................... 5.07
Sec. 313(a)............................................................ 7.14
(b)............................................................... 7.14
(c)............................................................... 7.14
(d)............................................................... 7.14
Sec. 314(a)............................................................ 7.15
(b)..................................................... Not Applicable
(c)(1)...................................................... 7.16, 7.17
(c)(2)...................................................... 7.16, 7.17
(c)(3).................................................. Not Applicable
(d)..................................................... Not Applicable
(e)............................................................... 7.17
Sec. 315(a)................................................ 7.01(a), 7.03(a)
(b)........................................................ 7.02, 10.08
(c)............................................................ 7.01(a)
(d)......................................................... 7.01, 7.03
(e)..................................................... Not Applicable
Sec. 316(a).................................................. Not Applicable
(a)(1)(A)............................................... Not Applicable
(a)(1)(B)............................................... Not Applicable
(a)(2).................................................. Not Applicable
(b)..................................................... Not Applicable
(c)..................................................... Not Applicable
Sec. 317(a)(1)............................................... Not Applicable
(a)(2).................................................. Not Applicable
(b)............................................................... 5.09
Sec. 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.
vi
AMENDED AND RESTATED TRUST AGREEMENT of [SJG] Capital Trust
(the "Trust"), dated as of March [ ], 1997, among (i) South
Jersey Gas Company, a New Jersey corporation (the "Depositor"),
(ii) The Bank of New York, a New York banking corporation, as
trustee (the "Property Trustee"), (iii) The Bank of New York
(Delaware), a Delaware banking corporation, whose address
in Delaware is 23 White Clay Center Route 273, Newark, Delaware
19711, as Delaware trustee (the "Delaware Trustee"), (iv) David
A. Kindlick, an individual whose address is c/o South Jersey Gas
Company, Number One South Jersey Plaza, Route 54, Folsom, New
Jersey 08037 (the "Administrative Trustee") (the Property
Trustee, the Delaware Trustee and the Administrative Trustee are
referred to collectively as the "Trustees"), and (v) the several
Holders, as hereinafter defined.
WITNESSETH:
WHEREAS the Depositor, the Property Trustee, the Delaware Trustee and
the Administrative Trustee have heretofore duly declared and established a
business trust pursuant to the Delaware Business Trust Act by entering into a
Trust Agreement, dated as of March [ ], 1997 (the "Original Trust Agreement"),
and by executing and filing with the Secretary of State of the State of Delaware
a Certificate of Trust (the "Certificate of Trust") on March [ ], 1997, a form
of which is attached hereto as Exhibit A; and
WHEREAS the Depositor, the Property Trustee, the Delaware Trustee and
the Administrative Trustee 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 hereinafter defined, by
the Trust to the Depositor, (ii) the issuance and sale of the Preferred
Securities, as hereinafter defined, by the Trust pursuant to the Underwriting
Agreement, as hereinafter defined, and (iii) the acquisition by the Trust from
the Depositor of the Debentures, as hereinafter defined.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby
acknowledged, each party, for the benefit of the other party and for the benefit
of the Securityholders, as hereinafter
defined, hereby amends and restates the Original Trust Agreement in its entirety
and agrees as follows:
ARTICLE I
Defined Terms
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SECTION 1.01. Definitions. For all purposes of this Trust Agreement,
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except as otherwise expressly provided or unless the context otherwise
requires:
(a) each term defined in this Article I has the meaning assigned to it
in this Article I and includes the plural as well as the singular;
(b) each of the other terms used herein that is defined in the Trust
Indenture Act, either directly or by reference therein, has the meaning
assigned to it therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Administrative Trustee" means the individual identified as the
"Administrative Trustee" in the preamble to this Trust Agreement, solely in
his/her capacity as Administrative Trustee of the Trust created and continued
hereunder and not in his/her individual capacity, or such Administrative
Trustee's successor in interest in such capacity, or any successor 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.
"Bankruptcy Event" means, with respect to any Person, the occurrence
of any of the following events:
(a) Such Person, pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in an
involuntary case or proceeding;
(iii) consents to the appointment of a Custodian, as hereinafter
defined, of it or for all or substantially all of its property, and such
Custodian is not discharged within 60 days;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to pay its debts generally as
they become due; or
(b) A court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against such Person in an involuntary case or
proceeding;
(ii) appoints a Custodian of such Person for all or substantially
all of its properties;
(iii) orders the liquidation of such Person;
(iv) and in each case, the order or decree remains unstayed or
undischarged and in effect for 60 days.
"Bankruptcy Laws" means Title 11 of the United States Code, or similar
federal or state law for the relief of debtors.
"Board Resolution" means (i) 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 a committee established thereby and to
be in full force and effect on the date of such certification or (ii) a
certificate signed by the authorized officer or officers of the Depositor to
whom the Depositor's Board of Directors or a committee established
thereby has delegated its authority, and in each case, delivered to the
Trustees.
"Book-Entry Preferred Securities Certificates" means certificates
representing Preferred Securities issued in global, fully registered form with
the Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, or (b)
a day on which banking institutions in The City of New York or the State of New
Jersey are required by law or executive order to remain closed.
"Certificate Depository Agreement" means the agreement among the
Trust, the Property Trustee and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Book-Entry
Preferred Securities Certificates, substantially in the form attached hereto as
Exhibit B, as the same may be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder. The Depository
Trust Company will be the initial Clearing Agency.
"Closing Date" means the [Time of Delivery] as defined in the
Underwriting Agreement, which date is also 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 Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Trust Agreement 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 Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached hereto as
Exhibit C.
"Corporate Trust Office" means the principal corporate trust office of
the Property Trustee located in the State of New York which at the date hereof
is The Bank of New York, 101 Barclay Street-21W, New York, New York 10286.
"Creditor" has the meaning specified in Section 2.03.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture with respect to the Debentures.
"Debenture Redemption Date" means "Redemption Date" as defined in the
Indenture with respect to the Debentures.
"Debenture Trustee" means The Bank of New York, a New York banking
corporation, in its capacity as trustee under the Indenture, or any successor
thereto, appointed in accordance with the terms and provisions of the Indenture.
"Debentures" means the Depositor's [ ]% Deferrable Interest
Subordinated Debentures, issued pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means certificates
representing Preferred Securities issued in certificated, fully registered form
as described in Section 5.12.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Sec. 3801, et seq., as it may be amended from time to
time.
"Delaware Trustee" means the entity identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust created and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Event of Default" means the occurrence of a Debenture Event of
Default (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body).
"Expiration Date" has the meaning specified in Section 8.01.
"Extension Period" means the period or periods in which pursuant to
the Indenture payments of interest on the Debentures are deferred by extending
the interest payment periods thereof.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Depositor to The Bank of New York, a New York banking corporation, as
trustee thereunder, contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Holder" or "Securityholder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such Person
is a beneficial owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Indenture, dated as of March [ ], 1997, between
the Depositor and the Debenture Trustee, as trustee thereunder, as amended or
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 (a) with respect to a redemption of Trust
Securities, Trust Securities having an aggregate Liquidation Amount equal to the
principal amount of Debentures to be repaid in accordance with the Indenture
and (b) with respect to a distribution of Debentures to Holders of Trust
Securities in connection with a termination and liquidation of the Trust,
Debentures having a principal amount equal to the aggregate Liquidation Amount
of the Trust Securities in exchange for which such Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 8.04(a).
"Liquidation Distribution" has the meaning specified in Section
8.04(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman,
the President, or any Vice President, and the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor.
"Opinion of Counsel" means a written opinion of nationally recognized
independent counsel, who shall be acceptable to the Property Trustee.
"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 canceled by the Administrative
Trustee or delivered to the Administrative Trustee for cancellation;
(b) Trust Securities for whose redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Trust Securities; provided that, if
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such Trust Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Trust Agreement;
(c) Trust Securities which have been paid or in exchange for or in
lieu of which other Trust Securities
have been executed and delivered pursuant to Section 5.05, other than any
such Trust Securities in respect of which there shall have been presented
to the Property Trustee proof satisfactory to it that such Trust Securities
are held by a bona fide purchaser; and
(d) as provided in Section 8.04(c); provided, however, that in
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determining whether the Holders of the requisite Liquidation Amount of the
Outstanding Preferred Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred Securities which such
Trustee actually knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the Outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or
any such Affiliate. Preferred Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Administrative Trustee the pledgee's right so to
act with respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Paying Agent" means the Property Trustee and any copaying agent
appointed pursuant to Section 5.09.
"Payment Account" means a segregated noninterestbearing corporate
trust account maintained by the Property Trustee in its trust department for the
benefit of the Securityholders in which all amounts paid to the Property Trustee
in respect of the Debentures or the Guarantee will be held and from which the
Property Trustee or such other Paying Agent shall make payments to the
Securityholders in accordance with Article 4.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, jointstock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Security" means a [ ]% Preferred Security issued by the
Trust, and having an undivided beneficial interest in the assets of the Trust,
having a Liquidation Amount of $25 and having rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of one or more Preferred Securities, substantially in the form
attached hereto as Exhibit D.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore created and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust 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
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of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions thereon to the Redemption Date.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such Person
is a beneficial owner within the meaning of the Delaware Business Trust Act.
"Successor Securities" has the meaning specified in Section 8.05.
"Trust" means the Delaware business trust created and continued hereby
and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this Trust Agreement was executed; provided,
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however, that in the event the Trust Indenture Act of 1939 is amended after such
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date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in,
or owing to, the Payment Account and (c) all proceeds and rights in respect of
the foregoing and any other property and assets for the time being held or
deemed to be held by the Property Trustee pursuant to the trusts of this Trust
Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Underwriting Agreement" means the Underwriting Agreement, dated March
[ ], 1997, among the Trust, the Depositor and the Underwriters named therein.
ARTICLE II
Continuation of the Trust
-------------------------
SECTION 2.01. Name. The Trust created and continued hereby shall be
-----
known as "SJG Capital Trust" as such name may be modified from time to time by
the Administrative Trustee following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may engage in the
transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
SECTION 2.02. Office of the Delaware Trustee; Principal Place of
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Business. The address of the Delaware Trustee in the State of Delaware is 23
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White Clay Center Route 273, Newark, Delaware 19711, or such other address in
the State of Delaware as the Delaware Trustee may designate by written notice to
the Securityholders and the Depositor. The principal place of business of the
Trust is
Number One South Jersey Plaza, Route 54, Folsom, New Jersey 08037.
SECTION 2.03. Initial Contribution of Trust Property; Expenses of the
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Trust. (a) The Property Trustee acknowledges receipt in trust from the
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Depositor in connection with the Original Trust Agreement the sum of $10, which
constituted the initial Trust Property.
(b) The Depositor shall be responsible for and shall pay for all
obligations (other than with respect to the Trust Securities) and all costs and
expenses of the Trust (including, but not limited to, costs and expenses
relating to the organization of the Trust, the issuance and sale of the
Preferred Securities, the fees and expenses (including reasonable counsel fees
and expenses) of the Trustees as provided in Section 7.06, the costs and
expenses of accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or accounting equipment,
Paying Agent(s), Securities Registrar, duplication, travel and telephone and
other telecommunications expenses and costs and expenses incurred in connection
with the disposition of Trust assets).
(c) The Depositor will pay any and all taxes (other than United
States withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the Trust.
(d) The Depositor's obligations under this Section 2.03 shall be for
the benefit of, and shall be enforceable by, the Property Trustee and any Person
to whom any such obligations, costs, expenses and taxes are owed (a "Creditor")
whether or not such Creditor has received notice hereof. The Property Trustee
and any such Creditor may enforce the Depositor's obligations under this Section
2.03 directly against the Depositor and the Depositor irrevocably waives any
right or remedy to require that the Property Trustee or any such Creditor take
any action against the Trust or any other Person before proceeding against the
Depositor. The Depositor agrees to execute such additional agreements as may be
necessary or desirable in order to give full effect to the provisions of this
Section 2.03.
(e) The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.04. Issuance of the Trust Securities. The Depositor, on
---------------------------------
behalf of the Trust and pursuant to the Original Trust Agreement, executed and
delivered the Underwriting Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, the
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.02 and deliver to the Underwriters named in the Underwriting Agreement
one or more Book-Entry Preferred Securities Certificates, registered in the name
of the nominee of the initial Clearing Agency, representing 1,400,000 Preferred
Securities having an aggregate Liquidation Amount of $35,000,000, against
receipt by the Property Trustee of the aggregate purchase price of such
Preferred Securities of $35,000,000, which amount the Administrative Trustee
shall promptly deliver to the Property Trustee. Contemporaneously therewith, the
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.02 and deliver to the Depositor a Common Securities Certificate,
registered in the name of the Depositor, representing 43,299 Common Securities
having an aggregate Liquidation Amount of $1,082,475, and in satisfaction of the
purchase price of such Common Securities the Depositor shall deliver to the
Property Trustee the sum of $1,082,475.
SECTION 2.05. Purchase of Debentures. Contemporaneously with the
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execution and delivery of this Trust Agreement (i) the Administrative Trustee,
on behalf of the Trust, shall purchase [$36,082,475] aggregate principal amount
of Debentures from the Depositor, registered in the name of the Trust and (ii)
in satisfaction of the purchase price for such Debentures, the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor the sum of [$36,082,475].
SECTION 2.06. Declaration of Trust. The exclusive purposes and
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functions of the Trust are (a) to issue and sell Trust Securities and use the
proceeds from such sale to acquire the Debentures, (b) to maintain the status of
the Trust as a grantor trust for United States Federal income tax purposes, and
(c) except as otherwise limited herein, to engage in only those activities
necessary, convenient or incidental thereto. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and duties to
the extent set forth herein, and the Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property in
trust upon and subject to the conditions set forth herein for the benefit of the
Securityholders. The Administrative Trustee shall have all rights, powers and
duties set forth herein. 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 Trustee set forth
herein. The Delaware Trustee shall be one of the Trustees of the Trust for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the
Delaware Business Trust Act.
SECTION 2.07. Authorization to Enter into Certain Transactions. (a)
-------------------------------------------------
The Trustees shall conduct the affairs of the Trust in accordance with the terms
of this Trust Agreement. Subject to the limitations set forth in paragraph (b)
of this Section, and in accordance with the following provisions (i) and (ii),
the Administrative Trustee shall have the authority to enter into all
transactions and agreements determined by the Administrative Trustee to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Trustees under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation, the following:
(i) As among the Trustees, the Administrative Trustee shall have the
power and authority to act on behalf of the Trust with respect to the following
matters:
(A) executing and delivering the Trust Securities on behalf of the
Trust;
(B) causing the Trust to enter into, and executing, delivering and
performing on behalf of the Trust, the Certificate Depository Agreement and
such other agreements as may be necessary or desirable in connection with
the purposes and function of the Trust, including the appointment of a
successor depositary;
(C) assisting in registering the Preferred Securities under the
Securities Act of 1933, as amended, and under state securities or blue sky
laws, and qualifying this Trust Agreement as a trust indenture under the
Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such
securities exchange or exchanges as the Depositor shall determine and the
registration of the Preferred Securities under the Securities Exchange Act
of 1934, as amended, and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing;
(E) to the extent provided in this Trust Agreement, terminating and
liquidating the Trust and preparing, executing and filing the certificate
of cancellation with the Secretary of State of the State of Delaware;
(F) sending notices or assisting the Property Trustee in sending
notices and other information regarding the Trust Securities and the
Debentures to Securityholders in accordance with this Trust Agreement; and
(G) taking any action incidental to the foregoing as the
Administrative Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement for the
benefit of the Securityholders (without consideration of the effect of any
such action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the following
matters:
(A) establishing and maintaining the Payment Account and appointing
Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust Securities;
(C) receiving and holding the Debentures;
(D) collecting interest, premium, if any, and principal payments on
the Debentures;
(E) making Distributions and other payments to the Securityholders in
respect of the Trust Securities;
(F) exercising all of the rights, powers and privileges of a holder
of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods,
liquidations and other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this Trust Agreement;
(H) distributing the Trust Property in accordance with the terms of
this Trust Agreement;
(I) after an Event of Default, 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
Securityholders (without consideration of the
effect of any such action on any particular Securityholder); and
(J) registering transfers and exchanges of the Preferred Securities
in accordance with this Trust Agreement (but only if at such time the
Property Trustee shall be the Securities Registrar).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees acting on behalf of the Trust shall not (i)
acquire any assets or investments (other than the Debentures), reinvest the
proceeds derived from investments, possess any power or otherwise act in such a
way as to vary the Trust Property 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 Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify as a grantor
trust for United States Federal income tax purposes, (iv) incur any indebtedness
for borrowed money or issue any other debt, (v) issue any securities or other
evidences of beneficial ownership of, or beneficial interests in, the Trust
other than the Trust Securities, or (vi) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Administrative Trustee shall defend all claims and demands of all Persons at any
time claiming any Lien on any of the Trust Property adverse to the interest of
the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Administrative Trustee with respect to, or effect on behalf of the Trust, the
following (and any actions taken by the Depositor in furtherance of the
following prior to the date of this Trust Agreement are hereby ratified and
confirmed in all respects):
(i) preparing for filing with the Commission and executing on behalf
of the Trust a registration statement on Form S-3 in relation to the
Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and
doing any and all such acts, other than actions which must be taken
by or on behalf of the Trust, and advising the Trustees of actions they
must take on behalf of the Trust, and preparing for execution and filing
any documents to be executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in order to comply
with the applicable laws of any such States;
(iii) preparing for filing and executing on behalf of the Trust an
application to the New York Stock Exchange or any other national stock
exchange or The Nasdaq National Stock Market for listing upon notice of
issuance of any Preferred Securities;
(iv) preparing for filing with the Commission and executing on
behalf of the Trust a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) or 12(g) of
the Securities Exchange Act of 1934, as amended, including any amendments
thereto;
(v) negotiating the terms of, and executing and delivering, the
Underwriting Agreement providing for the sale of the Preferred Securities;
and
(vi) taking any other actions necessary or desirable to carry out
any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustee is authorized and directed to conduct the affairs of the
Trust and to operate the Trust so that (i) the Trust will not be deemed to be an
"investment company" required to be registered under the 1940 Act, or taxed as a
corporation or a partnership for United States Federal income tax purposes, (ii)
the Trust will qualify as a grantor trust for United States Federal income tax
purposes and (iii) the Debentures will be treated as indebtedness of the
Depositor for United States Federal income tax purposes. In this connection, the
Depositor and the Administrative Trustee are authorized to take any action, not
inconsistent with applicable law, under the Certificate of Trust, as amended
from time to time, or this Trust Agreement, that each of the Depositor and the
Administrative Trustee determines in their discretion to be necessary or
desirable for such purposes.
SECTION 2.08. Assets of Trust. The assets of the Trust shall consist
----------------
of the Trust Property.
SECTION 2.09. Title to Trust Property. Legal title to all Trust
------------------------
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be
held and administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
SECTION 2.10. Tax Status of Trust. The Trust, the Depositor, the
-------------------
Property Trustee, the Administrative Trustee, the Delaware Trustee, and the
Holders have entered into this Trust Agreement, and the Trust Securities will be
issued, with the intention that (i) the Trust will be classified as a grantor
trust under subpart E, part I of subchapter J of the Code and not as an
association taxable as a corporation or a publicly traded partnership taxable as
a corporation for purposes of federal income tax law, and (ii) the Holders will
be treated as the owners of a pro rata undivided interest in each asset of the
Trust. The Trust, the Depositor, the Property Trustee, the Administrative
Trustee, the Delaware Trustee, and each Holder agree to treat and to take no
action inconsistent with the treatment of the Trust Securities (or beneficial
interest therein) as interests in a grantor trust for purposes of federal, state
and local income and franchise taxes. The Trust, the Depositor, the Property
Trustee, the Administrative Trustee and the Delaware Trustee agree to take no
action with respect to the Trust or any interest therein that would cause the
Trust to be treated as an association or publicly traded partnership taxable as
a corporation for purposes of federal income tax law. Each Holder, by
acquisition of a Trust Security (or a beneficial interest therein), agrees to be
bound by the provisions of this Section 2.10. Notwithstanding any other
provision in this Trust Agreement to the contrary, the Trustees shall have no
power to vary the investment of the Holders within the meaning of Treasury
Department Regulation (S) 301.7701-4(c) or to engage in business in its capacity
as a Trustee hereunder unless, the Trustees shall have received an Opinion of
Counsel that such activity shall not cause the Trust to be an association or a
publicly traded partnership taxable as a corporation for federal income tax
purposes. The provisions of this Trust Agreement shall be construed in light of
the foregoing intended tax treatment.
ARTICLE III
Payment Account
---------------
SECTION 3.01. Payment Account. (a) On or prior to the Closing Date,
----------------
the Property Trustee shall establish the Payment Account. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee for the exclusive
19
benefit of the Securityholders. The Property Trustee shall have exclusive
control of the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement;
provided that any Paying Agent shall have the right of withdrawal with respect
- --------
to the Payment Account solely for the purpose of making the payments
contemplated under Article 4.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt (i) all payments of principal of, or premium, if any, or
interest on the Debentures and (ii) any amounts paid to the Property Trustee
pursuant to the Guarantee. Amounts held in the Payment Account shall not be
invested pending distribution thereof.
ARTICLE IV
Distributions; Redemption
-------------------------
SECTION 4.01. Distributions. (a) Distributions on the Trust
--------------
Securities shall be cumulative, and will accumulate whether or not there are
funds of the Trust available for the payment of Distributions. Distributions
shall accumulate from the date hereof, and, except during an Extension Period
for 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 [June 30, 1997.]. If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distributions shall be made on the next succeeding day which is
a Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, payment of such Distributions shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date (each date on which Distributions are payable in accordance with this
Section 4.01(a) is referred to as a "Distribution Date"). Within five Business
Days after receipt by the Property Trustee of notice of an Extension Period
pursuant to Section 4.01 of the Indenture, the Property Trustee shall give
notice thereof to the Securityholders by first class mail, postage prepaid.
(b) The Trust Securities represent undivided beneficial interests in
the Trust Property, and, subject to Sections 4.03 and 4.06 hereof, all
Distributions will be made pro rata on each of the Trust Securities.
Distributions on the Trust Securities shall be payable at a
20
rate of [ ]% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any full quarterly period shall be computed
on the basis of a 360-day year of twelve 30-day months and, for any period
shorter than a full month, shall be computed on the basis of the actual number
of days elapsed in such period based on 30-day months. During an Extension
Period for the Debentures, the rate per annum at which Distributions on the
Trust Securities accumulate shall be increased by an amount such that the
aggregate amount of Distributions that accumulate on all Trust Securities during
any such Extension Period is equal to the aggregate amount of interest
(including interest payable on unpaid interest at the rate per annum set forth
above, compounded quarterly) that accrues during any such Extension Period on
the Debentures.
(c) Distributions on the Trust Securities shall be made from the
Payment Account by the Property Trustee or any Paying Agent and shall be payable
on each Distribution Date only to the extent that the Trust has funds then
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities on each Distribution Date
shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
one Business Day prior to such Distribution Date; provided, however, that in the
-------- -------
event that the Preferred Securities are not in book-entry-only form, the
relevant record date shall be the 15th day of the last month of each calendar
quarter, whether or not a Business Day.
SECTION 4.02. Redemption. (a) Upon receipt by the Trust of a notice
-----------
of redemption of Debentures, the Trust will call for redemption a Like Amount of
Trust Securities at the Redemption Price on the Debenture Redemption Date and
will call for redemption all Outstanding Trust Securities on the stated maturity
date of the Debentures.
(b) Following receipt of the notice to the Property Trustee
contemplated by (S) 3.01 of Indenture, 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 Securities
Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
21
(iii) the CUSIP number;
(iv) the place or places where Trust Securities Certificates are to be
surrendered for payment of the Redemption Price;
(v) that on the Redemption Date the Redemption Price will become
payable upon each such Trust Security to be redeemed and that Distributions
thereon will cease to accumulate on and after such date;
(vi) if less than all of the Outstanding Trust Securities are to be
redeemed, the identification and total Liquidation Amount of the particular
Trust Securities to be redeemed; and
(vii) that Redemption is conditioned upon receipt by the Property
Trustee of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption or payment at maturity 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 Trust has funds then available in
the Payment Account for the payment of such Redemption Price.
(d) If the Trust, by action of the Property Trustee, gives a notice of
redemption in respect of any Preferred Securities, then, on the Redemption Date,
subject to Section 4.02(c), the Property Trustee will irrevocably deposit with
the Paying Agent funds sufficient to pay the Redemption Price for the Preferred
Securities being redeemed on such date and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price to the
Holders of such Preferred Securities upon surrender of their 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 record dates
for the related Distribution Dates. If notice of redemption shall have been
given and funds irrevocably deposited as required, then upon the date of such
distribution, all rights of Securityholders holding Trust Securities so called
for redemption will cease, except the right of such Securityholders to receive
the Redemption Price, but without interest, and such Trust 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
22
payment of the Redemption Price payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding 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 Trust or by the Depositor pursuant to the Guarantee,
Distributions on such Trust Securities will continue to accumulate, at the then
applicable rate, from the Redemption Date originally established by the Trust
for such Trust Securities to the date such Redemption Price is actually paid, in
which case the actual payment date will be the date fixed for redemption for
purposes of calculating the Redemption Price.
(e) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated 3% to the Common Securities and 97%
to the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption, by such method as the Property
Trustee shall deem fair and appropriate. The Property Trustee shall promptly
notify the Securities Registrar in writing of the Preferred Securities selected
for redemption. If fewer than all of the Trust Securities represented by a
Trust Securities Certificate are redeemed, the Administrative Trustee shall
execute for the Holder a new Trust Securities Certificate representing the
unredeemed Trust Securities. For all purposes of this Trust Agreement, unless
the context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities which has been or is to be redeemed.
SECTION 4.03. Subordination of Common Securities. (a) Payment of
-----------------------------------
Distributions on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made pro rata based on the Liquidation Amount of the Trust
Securities; provided, however, that if on any Distribution Date or Redemption
-------- -------
Date, a Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution on, or Redemption Price of, any Common Security, and
no other payment on account of the liquidation of Common Securities, shall be
made unless payment in full in cash of all accumulated and unpaid Distributions
on all Outstanding 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 Preferred Securities then
being redeemed, 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
23
Distributions on, or the Redemption Price of, Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Debenture Event of Default,
the Holder of Common Securities will be deemed to have waived any right to act
with respect to any related Event of Default under this Trust Agreement and such
Debenture Event of Default until the effect of such related Event of Default and
such Debenture Event of Default has been cured, waived or otherwise eliminated.
Until any such Event of Default under this Trust Agreement and such Debenture
Event of Default has been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not the Holder of the Common Securities, and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee to act
on their behalf.
SECTION 4.04. Payment Procedures. Payments of Distributions pursuant
-------------------
to Section 4.01 in respect of the Preferred Securities shall be made by check
mailed to the address of the Holder thereof as such address shall appear on the
Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency by wire transfer
in immediately available funds. Payments of Distributions pursuant to Section
4.01 in respect of the Common Securities shall be made in such manner as shall
be mutually agreed between the Property Trustee and the Holder of the Common
Securities. Payment of the Redemption Price or Liquidation Distribution of the
Trust Securities shall be made in immediately available funds upon surrender of
the Preferred Securities Certificate and Common Securities Certificates
representing such Trust Securities at the Corporate Trust Office of the Property
Trustee.
SECTION 4.05. Tax Returns and Reports. The Administrative Trustee
------------------------
shall prepare (or cause to be prepared), at the Depositor's expense, and file
all Federal, State and local tax and information returns and reports required to
be filed by or in respect of the Trust. In this regard, the Administrative
Trustee shall (a) prepare and file (or cause to be prepared or filed) the
appropriate Internal Revenue Service Form required to be filed in respect of the
Trust in each taxable year of the Trust and (b) prepare and furnish (or cause to
be prepared and furnished) to each Securityholder the related Internal Revenue
Service Form 1099 OID, or any successor form or the information required to be
provided on such form. The Administrative Trustee shall provide the Depositor
and the Property Trustee with a copy of all such returns, reports and schedules
promptly after such filing or furnishing. The
24
Trustees shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to Securityholders under the Trust Securities.
SECTION 4.06. Payments Under Indenture. Any amount payable hereunder
-------------------------
to any Holder of Preferred Securities shall be reduced by the amount of any
corresponding payment such Holder has directly received pursuant to Section 6.07
of the Indenture or pursuant to the Guarantee. Notwithstanding the provisions
hereunder to the contrary, Securityholders acknowledge that any Holder of
Preferred Securities that receives payment under Section 6.07 of the Indenture
may receive amounts greater than the amount such Holder may be entitled to
receive pursuant to the other provisions of this Trust Agreement.
ARTICLE V
Trust Securities Certificates
-----------------------------
SECTION 5.01. Initial Ownership. Upon the creation of the Trust and
------------------
the contribution by the Depositor pursuant to Section 2.03 and until the
issuance of the Trust Securities, and at any time during which no Trust
Securities are outstanding, the Depositor shall be the sole beneficial owner of
the Trust.
SECTION 5.02. The Trust Securities Certificates. The Preferred
----------------------------------
Securities Certificates shall be issued representing one or more Preferred
Securities. The Common Securities Certificates shall be issued representing one
or more Common Securities. Preferred Securities Certificates representing
fractional interests shall not be issued. The Trust Securities Certificates
shall be executed on behalf of the Trust by manual signature of the
Administrative Trustee or by a facsimile signature of the Administrative Trustee
and authenticated by the Property 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 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
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such
25
Trust Securities Certificate in such transferee's name pursuant to Section 5.04.
SECTION 5.03. Delivery of Trust Securities Certificates. On the
------------------------------------------
Closing Date, the Administrative Trustee shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust as provided in Section 5.02 and
delivered to or upon a written order of the Depositor signed by its Chairman of
the Board, its President, any Vice President or the Treasurer, without further
corporate action by the Depositor, in authorized denominations. The written
order of the Depositor shall be accompanied by an Officers' Certificate and an
Opinion of Counsel.
SECTION 5.04. Registration of Transfer and Exchange of Preferred
--------------------------------------------------
Securities Certificates. A registrar appointed by the Depositor (the
- ------------------------
"Securities Registrar") shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.08, a register (the "Securities Register") in
which, subject to such reasonable regulations as it may prescribe, the
Securities Registrar shall provide for the registration of Trust Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Property Trustee shall be the
initial Securities Registrar; any successor Securities Registrar shall be
appointed by the Administrative Trustee.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates representing the same number of Preferred Securities dated the date
of execution by the Administrative Trustee. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred Securities
Certificates upon surrender of the Preferred Securities Certificates to be
exchanged at the office or agency maintained pursuant to Section 5.08. The
Securities Registrar shall not be required to register the transfer of any
Preferred Securities that have been called for redemption or after the
Liquidation Date.
Preferred Securities presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Administrative Trustee and the Securities Registrar
duly executed by the Holder or such Holder's attorney duly
26
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Property Trustee in accordance with its customary practice but shall
not be required to destroy such canceled securities.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities, 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 Preferred Securities.
SECTION 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
-----------------------------------------------------
Certificates. If (a) 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 (b) there shall be delivered to the Securities
Registrar and the Administrative Trustee such security or indemnity as may be
required by them to hold the Securities Registrar and the Trust harmless, then
in the absence of notice that such Trust Securities Certificate shall have been
acquired by a bona fide purchaser, the Administrative Trustee, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like tenor. In connection with the issuance
of any new Trust Securities Certificate under this Section, the Administrative
Trustee 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 Trust, as if originally issued, whether or not the lost,
stolen or destroyed Trust Securities Certificate shall be found at any time.
SECTION 5.06. Persons Deemed Securityholders. Prior to due
-------------------------------
presentation of a Trust Security Certificate for registration of transfer, the
Administrative Trustee or the Securities Registrar shall treat the Person in
whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner and Holder of such Trust Securities Certificate
for the purpose of receiving Distributions and for all other purposes
whatsoever, and neither the Trustees nor the Securities Registrar shall be bound
by any notice to the contrary.
27
SECTION 5.07. Access to List of Securityholders' Names and Addresses.
-------------------------------------------------------
In the event that the Property Trustee is no longer the Securities Registrar,
the Administrative Trustee or the Depositor shall furnish or cause to be
furnished (a) to the Property Trustee, quarterly not later than 10 days prior to
a Distribution Date, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Securityholders as of the most recent
record date and (b) to the Property Trustee, promptly after receipt by the
Administrative Trustee or the Depositor of a request therefor from the Property
Trustee in order to enable the Paying Agent to pay Distributions in accordance
with Section 4.01 hereof, in each case to the extent such information is in the
possession or control of the Administrative Trustee or the Depositor and is not
identical to a previously supplied list or has not otherwise been received by
the Property Trustee. The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Trust Agreement or under
the Trust Securities, and the corresponding rights of the Property Trustee shall
be as provided in the Trust Indenture Act. Each Holder, by receiving and holding
a Trust Securities Certificate, shall be deemed to have agreed not to hold the
Depositor, the Property Trustee, the Administrative Trustee or the Delaware
Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 5.08. Maintenance of Office or Agency. The Property Trustee
--------------------------------
shall maintain in New York, New York, an office or offices or agency or agencies
where Preferred Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustees in respect of the
Trust Securities Certificates may be served. The Property Trustee shall give
prompt written notice to the Depositor and to the Securityholders of any change
in the location of the Securities Register or any such office or agency, which
shall initially be at the Corporate Trust Office of the Property Trustee.
SECTION 5.09. Appointment of Paying Agent. The Paying Agent shall
----------------------------
make Distributions to Securityholders and shall report the amounts of such
Distributions to the Property Trustee and the Administrative Trustee. Any Paying
Agent shall have the revocable power to withdraw funds from the Payment Account
for the purpose of making Distributions. The Administrative Trustee may revoke
such power and remove the Paying Agent, provided that such revocation and
--------
removal with respect to the sole Paying Agent shall not become effective until
the appointment of a successor. The Paying Agent shall initially be the Property
Trustee, and any
28
copaying agent chosen by the Property Trustee and acceptable to the
Administrative Trustee and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustee and the Depositor, and, if applicable, the Property
Trustee, provided that such resignation with respect to the sole Paying Agent
--------
shall not become effective until the appointment of a successor. In the event
that the Property Trustee shall no longer be the Paying Agent or a successor
Paying Agent shall resign or its authority to act be revoked, the Administrative
Trustee shall appoint a successor that is acceptable to the Property Trustee (in
the case of any other Paying Agent) and the Depositor to act as Paying Agent
(which shall be a bank or trust company and have a combined capital and surplus
of at least $50,000,000). The Administrative Trustee shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Administrative
Trustee to execute and deliver to the Trustees an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Trustees
that as Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto until such sums
shall be paid to such Securityholders. The Paying Agent shall return all of such
sums remaining unclaimed to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return such sums in its possession to the
Property Trustee. The provisions of Sections 7.01, 7.03 and 7.06 shall apply to
the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other Paying Agent appointed hereunder. Any reference in this Trust Agreement to
the Paying Agent shall include any copaying agent unless the context requires
otherwise.
SECTION 5.10. No Transfer of Common Securities by Depositor. To the
----------------------------------------------
fullest extent permitted by law, any attempted transfer of the Common Securities
shall be void. The Administrative Trustee shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE". By execution of this Trust Agreement, the
Depositor agrees to the foregoing provisions.
SECTION 5.11. Book-Entry Preferred Securities Certificates; Common
----------------------------------------------------
Securities Certificate. (a) The Preferred Securities, upon original issuance
- -----------------------
on the Closing Date, will not be engraved but will be issued in the form of one
or more printed or typewritten Book-Entry Preferred Securities Certificates, to
be delivered to The Depository
29
Trust Company, the initial Clearing Agency, by, or on behalf of, the Trust or
held by the Property Trustee as custodian. Such Book-Entry Preferred Securities
Certificate or Certificates shall initially be registered on the Securities
Register in the name of Cede & Co., the nominee of the initial Clearing Agency.
(b) 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 5.12. Definitive Preferred Securities Certificates. If (a)
---------------------------------------------
the Depositor advises the Trustees in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with respect
to the Preferred Securities Certificates or the Clearing Agency is no longer
registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, and the Depositor is unable
to locate a qualified successor, (b) the Depositor at its option advises the
Trustees in writing that it elects to terminate the book-entry system through
the Clearing Agency or (c) an Event of Default occurs and is continuing, then
the Administrative Trustee shall issue Definitive Preferred Securities
Certificates. Upon surrender to the Administrative Trustee of the Book Entry
Preferred Securities Certificates by the Clearing Agency, accompanied by
registration instructions, the Administrative Trustee shall execute and deliver
the Definitive Preferred Securities Certificates in accordance with the
instructions of the Clearing Agency. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
The Definitive Preferred Securities Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is reasonably acceptable
to the Administrative Trustee, as evidenced by the execution thereof by the
Administrative Trustee.
SECTION 5.13. Rights of Securityholders. The Securityholders shall
--------------------------
not have any right or title to the Trust Property other than the undivided
beneficial interest in the assets of the Trust conferred by their Trust
Securities and they shall have no right to call for any partition or division of
property, profits or rights of the Trust except as described below. The Trust
Securities shall be personal property giving only the rights specifically set
forth therein and in this Trust Agreement. The Trust Securities shall have no
preemptive or similar rights and when issued and delivered to Securityholders
against payment
30
of the purchase price therefor will be fully paid and nonassessable by the
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.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
-----------------------------------------
SECTION 6.01. Limitations on Voting Rights. (a) Except as provided
-----------------------------
herein and in the Indenture and as otherwise required by law, no Holder of Trust
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) The Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee or
executing any trust or power conferred on the Debenture Trustee with respect to
such Debentures, (ii) waive any past default which may be waived under Section
6.04 of the Indenture, (iii) exercise any right to rescind or annul an
acceleration of the principal of all the Debentures or (iv) consent to any
amendment or modification of the Indenture, where such consent shall be
required, without, in each case, obtaining the prior consent of the Holders of
at least a majority in aggregate Liquidation Amount of all Outstanding Preferred
Securities; provided, however, that where such 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 Outstanding Preferred Securities. The Trustees shall not
revoke any action previously authorized or approved by a vote of the Holders of
Preferred Securities, except by a subsequent vote of the Holders of Preferred
Securities. The Property Trustee shall notify all Holders of the Preferred
Securities of any notice received from the Debenture Trustee as a result of the
Trust being the holder of the Debentures. In addition to obtaining the consent
of the Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust
31
will not be classified as an association taxable as a corporation or partnership
for United States Federal income tax purposes on account of such action and will
continue to be classified as a grantor trust for United States Federal income
tax purposes.
(c) Subject to Section 10.02(c) hereof, if any proposed amendment to
the Trust Agreement provides for, or the Trustees otherwise propose to effect,
(i) any action that would adversely affect in any material respect the powers,
preferences or special rights of the Preferred Securities, whether by way of
amendment to this Trust Agreement or otherwise, or (ii) the termination or
liquidation of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred Securities will be entitled
to vote on such amendment or proposal and such amendment or proposal shall not
be effective except with the approval of the Holders of at least a majority in
aggregate Liquidation Amount of the Outstanding Preferred Securities.
SECTION 6.02. Notice of Meetings. Notice of all meetings of the
-------------------
Preferred Securityholders, stating the time, place and purpose of the meeting,
shall be given by the Property Trustee following notice to it by the
Administrative Trustee pursuant to Section 10.08 to each Preferred
Securityholder of record, at his/her 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 pursuant to Section 6.01 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 6.03. Meetings of Preferred Securityholders. No annual
--------------------------------------
meeting of Securityholders is required to be held. The Administrative Trustee,
however, shall call a meeting of Securityholders to vote on any matter upon the
written request of the Holders of at least 25% of the aggregate Liquidation
Amount of the Outstanding Preferred Securities and the Administrative Trustee or
the Property Trustee may, at any time in their discretion, call a meeting of
Preferred Securityholders to vote on any matters as to which the Preferred
Securityholders are entitled to vote.
Holders of at least 50% of the aggregate Liquidation Amount of the
Outstanding Preferred Securities, present in person or by proxy, shall
constitute a quorum at any meeting of Securityholders.
32
If a quorum is present at a meeting, an affirmative vote of the
Holders of at least a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities present, either in person or by proxy, at such
meeting shall constitute the action of the Securityholders, unless this Trust
Agreement requires a greater number of affirmative votes.
SECTION 6.04. Voting Rights. A Securityholder shall be entitled to
--------------
one vote for each Trust Security in respect of any matter as to which such
Securityholder is entitled to vote.
SECTION 6.05. Proxies, etc. At any meeting of Securityholders, any
-------------
Securityholder entitled to vote thereat may vote by proxy, provided that no
--------
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustee, or with such other officer or agent of the
Trust as the Administrative Trustee may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution of the
Administrative Trustee, proxies may be solicited in the name of the
Administrative Trustee or one or more officers of the Administrative Trustee.
Only Securityholders of record shall be entitled to vote. When Trust Securities
are held jointly by several Persons, any one of them may vote at any meeting in
person or by proxy in respect of such Trust Securities, but if more than one of
them shall be present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be cast, such vote
shall not be received in respect of such Trust Securities. A proxy purporting to
be executed by or on behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three years
after its date of execution.
SECTION 6.06. Securityholder Action by Written Consent. Any action
-----------------------------------------
which may be taken by Securityholders at a meeting may be taken without a
meeting if Holders of the proportion of the Outstanding Preferred Securities
required to approve such action shall consent to the action in writing.
SECTION 6.07. Record Date for Voting and Other Purposes. For the
------------------------------------------
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or for the purpose of any other
action, the Administrative Trustee may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Securityholders, as a record
date for the
33
determination of the identity of the Securityholders for such purposes.
SECTION 6.08. Acts of Securityholders. Any request, demand,
------------------------
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to the Administrative Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
7.02) conclusive, 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/her the execution thereof. Where
such execution is by a signer acting in a capacity other than his/her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his/her authority. The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the same, may also be
proved in any other manner which any Trustee receiving the same deems
sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
34
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents, each of which may do so pursuant to
such appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustee or among such Securityholders or Trustees with respect to
the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
SECTION 6.09. Inspection of Records. Upon reasonable notice to the
----------------------
Administrative Trustee and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
The Trustees
------------
SECTION 7.01. Certain Duties and Responsibilities. (a) The duties
------------------------------------
and responsibilities of the Trustees shall be as provided by this Trust
Agreement and, in the case of the Property Trustee, also by the Trust Indenture
Act. The Property Trustee, other than during the occurrence and continuance of
an Event of Default, undertakes to perform only such duties as are specifically
set forth in this Trust Agreement and, upon an Event of Default, must exercise
the same degree of care and skill as a prudent person would exercise or use in
the conduct of his/her own affairs. The Trustees shall have all the privileges,
rights and immunities provided by the Delaware Business Trust Act.
Notwithstanding the foregoing, no provision of this Trust Agreement shall
require the Trustees to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or
35
affecting the liability of or affording protection to the Trustees shall be
subject to the provisions of this Section. Nothing in this Trust Agreement shall
be construed to release any of the Trustees from liability for such Trustee's
own grossly negligent action, such Trustee's own grossly negligent failure to
act, or such Trustee's own willful misconduct. To the extent that, at law or in
equity, any of Trustees have duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to the Securityholders, such Trustee shall not
be liable to the Trust or to any Securityholder for such 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
Trustees otherwise existing at law or in equity, are agreed by the Depositor and
the Securityholders to replace such other duties and liabilities of the
Trustees.
(b) All payments made by the Property Trustee or any other Paying
Agent in respect of the Trust Securities shall be made only from the income and
proceeds from the Trust Property. Each Securityholder, by its acceptance of a
Trust Security, agrees that (i) it will look solely to the income and proceeds
from the Trust Property to the extent available for distribution to it as herein
provided and (ii) the 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 7.01(b) does not limit the liability
of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.
SECTION 7.02. Notice of Defaults; Direct Action by Securityholders.
-----------------------------------------------------
Within 90 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 10.08, notice of such Event of Default to the
Securityholders, the Administrative Trustee and the Depositor, unless such Event
of Default shall have been cured or waived. If the Property Trustee has failed
to enforce its rights under this Trust Agreement or the Indenture to the fullest
extent permitted by law and subject to the terms of this Trust Agreement and the
Indenture, upon an Event of Default specified in Section 6.01(1) of the
Indenture, any Securityholder shall have the right to institute a proceeding
directly against the Depositor, pursuant to Section 6.07 of the Indenture, for
enforcement of payment to such Securityholder of the principal amount of or
interest on the Debentures having an aggregate principal amount equal to the
aggregate Liquidation Amount of the Preferred Securities of such
36
Securityholder. Except as set forth in Section 6.07 of the Indenture, the
Securityholders shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of the Debentures. Any amount payable
hereunder to any Securityholder shall be reduced by the amount of any
corresponding payment such Securityholder has directly received pursuant to
Section 6.07 of the Indenture.
SECTION 7.03. Certain Rights of Property Trustee.
-----------------------------------
Subject to the provisions of Section 7.01:
(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, other than during the occurrence and continuance of an Event
of Default, (i) in performing its duties under this Trust Agreement, the
Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions in 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 Preferred Securityholders are entitled to
vote under the terms of this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken. The Property Trustee
shall take such action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain from taking,
by the Depositor; provided, however, that if the Property Trustee does not
-------- -------
receive such instructions of the Depositor within ten Business Days after
it has delivered such notice, or such reasonably shorter period of time set
forth in such notice (which to the extent practicable shall not be less
than two Business Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this Trust Agreement
as it shall deem advisable and in
37
the best interests of the Securityholders, in which event the Property
Trustee shall have no liability except for its own negligent action, its
own negligent failure to act or its own willful misconduct;
(c) the Property Trustee may consult with counsel or other experts of
its selection and the advice or opinion of such counsel or other experts
with respect to legal matters or advice within the scope of such experts'
area of expertise 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;
(d) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request
or direction of any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(e) 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, direction, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other
paper or document, but the Property Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may
see fit; and
(f) 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 and the Property Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 7.04. Not Responsible for Recitals or Issuance of Securities.
-------------------------------------------------------
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Depositor of the proceeds of the Debentures.
SECTION 7.05. May Hold Securities. Any Trustee or any other agent of
--------------------
any Trustee or the Trust, in its
38
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 7.08 and 7.13 and, except as provided in the
definition of the term Outstanding in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 7.06. Compensation; Indemnity; Fees. The Depositor agrees:
------------------------------
(a) to pay to the Trustees from time to time such compensation as
shall have been agreed in writing with the Depositor for all services
rendered by them hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its own grossly
negligent action, its own grossly negligent failure to act or its own
wilful misconduct; and
(c) to indemnify each of the Trustees or any predecessor Trustee for,
and to hold the Trustees harmless against, any and all loss, damage,
claims, liability, penalty or expense including taxes (other than taxes
based on the income of such Trustee) incurred without its own negligent
action, its own negligent failure to act or its wilful misconduct (or, in
the case of the Administrative Trustees, incurred without gross negligence
or bad faith), arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
No Trustee may claim any Lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 7.06.
The provisions of this Section 7.06 shall survive the termination of
this Trust Agreement and the resignation or removal of each Trustee.
39
SECTION 7.07. Corporate Property Trustee Required; Eligibility of
---------------------------------------------------
Trustees. (a) There shall at all times be a Property Trustee hereunder. The
- ---------
Property Trustee shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age and
a resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 7.08. Conflicting Interests. If the Property Trustee has or
----------------------
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
SECTION 7.09. 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 Trustee (and if more than one
Administrative Trustee, by agreed action of the majority of such Trustees) shall
have power (i) to appoint, and upon the written request of the Administrative
Trustee, the Depositor shall for such purpose join with the Administrative
Trustee in the execution,
40
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 (ii) 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. If the Depositor
does not join in such appointment within 15 days after the receipt by it of a
request to do so, or in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
(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
41
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 an Event of Default under the Indenture has occurred and
is continuing, the Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee without the concurrence
of the Depositor. Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee, or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of
a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 7.10. Resignation and Removal; Appointment of Successor. No
--------------------------------------------------
resignation or removal of any Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 7.11.
Subject to the immediately preceding paragraph, any Trustee may resign
at any time with respect to the Trust Securities by giving written notice
thereof to the Depositor.
Unless an Event of Default shall have occurred and be continuing, any
Trustee may be removed at any time by the Depositor. Notwithstanding the
foregoing, Depositor covenants to make all payments due to the Trustee hereunder
prior to any such removal. If an 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 only by Act of the Holders of at least a majority in
Liquidation Amount of the Outstanding Preferred Securities, delivered to such
Trustee (in its individual capacity and on
42
behalf of the Trust). The Administrative Trustee may only be removed by the
Depositor at any time.
If the instrument of acceptance by the successor Trustee required by
Section 7.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation or removal, the Trustee may petition,
at the expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Trustee.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Event of Default shall have occurred and be continuing,
the Depositor shall promptly appoint a successor Trustee or Trustees and the
Trust, and the retiring Trustee shall comply with the applicable requirements of
Section 7.11. 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 an Event of Default has
occurred and is continuing, the Holders of Preferred Securities, by Act of the
Securityholders of at least a majority in Liquidation Amount of the Outstanding
Preferred Securities delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees, and such successor Trustee shall comply with the
applicable requirements of Section 7.11. If any Administrative Trustee shall
resign, be removed or become incapable of acting as Administrative Trustee at a
time when an Event of Default shall have occurred and be continuing, the
Depositor shall appoint a successor Administrative Trustee. If no successor
Trustee shall have been so appointed by the Depositor or the Holders of
Preferred Securities and accepted appointment in the manner required by Section
7.11, any Securityholder who has been a Securityholder 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
Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.08 and shall give notice to
the Depositor. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or Delaware Trustee who is a
natural
43
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 requirements
for Administrative Trustee or for the Delaware Trustee, as the case may be, set
forth in Section 7.07).
SECTION 7.11. Acceptance of Appointment by Successor. In case of the
---------------------------------------
appointment hereunder of a successor Trustee, the retiring Trustee and each
successor Trustee shall execute and deliver to the Trust and the retiring
Trustee a written instrument wherein each successor Trustee shall accept such
appointment and containing such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee and upon the execution and
delivery of such instrument the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee and the Trust;
but, on request of the Trust or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all Trust
Property, all proceeds thereof and money held by such retiring Trustee
hereunder.
Upon request of any such successor Trustee, the Trust shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 7.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any Person into which any of the Trustees may be merged or converted
- ---------
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Trustee shall be a party, or any
Person succeeding to all or substantially all the corporate trust business of
such Trustee, shall be the successor of such Trustee hereunder, provided 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.
44
SECTION 7.13. Preferential Collection of Claims Against Depositor or
------------------------------------------------------
Trust. If and when the Property Trustee or the Delaware Trustee shall be or
- ------
become a creditor (whether directly or indirectly, secured or unsecured) of the
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), including under the terms of Section 7.05 hereof, the Property
Trustee or the Delaware Trustee, as the case may be, shall be subject to and
shall take all actions necessary in order to comply with the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
Trust (or any such other obligor).
SECTION 7.14. Reports by Property Trustee. 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. If
required by Section 313(a) of the Trust Indenture Act, the Property Trustee
shall, within 60 days after each April 30 following the date of this Trust
Agreement deliver to Holders a brief report, dated as of such April 30, which
complies with the provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each stock exchange upon which
any Preferred Securities are then listed, with the Commission and with the
Trust. The Trust will promptly notify the Property Trustee when any Preferred
Securities are listed on any stock exchange.
SECTION 7.15. Reports to the Property Trustee. The Depositor and the
--------------------------------
Administrative Trustee on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
SECTION 7.16. Evidence of Compliance with Conditions Precedent. The
-------------------------------------------------
Depositor and the Administrative Trustee on behalf of the Trust shall provide to
the Property Trustee 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.
SECTION 7.17. Statements Required in Officers' Certificate and
------------------------------------------------
Opinion of Counsel.
- -------------------
45
Each Officers' Certificate and Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Trust Agreement
shall include:
(1) a statement that each Person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement that, in the opinion of such Person, such covenant or
condition has been complied with; provided, however, that with respect to
-------- -------
matters of fact not involving any legal conclusion, an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public officials.
SECTION 7.18. Number of Trustees. (a) The number of Trustees shall
-------------------
be three, provided that the Holder of all of the Common Securities by written
instrument may increase and, if increased, may decrease the number of
Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 7.18(a), or if the
number of Trustees is increased pursuant to Section 7.18(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 7.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy shall occur, until such vacancy is
filled by the appointment of an Administrative Trustee in accordance with
Section 7.10, the Administrative Trustees in office, regardless of their number
(and notwithstanding any other provision of this Trust Agreement), shall have
all the powers granted to the Administrative Trustee and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
46
SECTION 7.19. Delegation of Power. (a) Any Administrative Trustee
--------------------
may, by power of attorney consistent with applicable law, delegate to any
natural person over the age of 21 his/her power for the purpose of executing any
documents contemplated in Section 2.07(a), including any registration statement
or amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) the Administrative Trustees shall have the power to delegate from
time to time to such of their number, if there is more than one Administrative
Trustee, or to the Depositor the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Administrative
Trustees or otherwise as the Administrative Trustees may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
SECTION 7.20. Voting. Except as otherwise provided in this Trust
-------
Agreement, the consent or vote of the Trustees shall be approved by not less
than a majority of the Administrative Trustees.
ARTICLE VIII
Termination and Liquidation
---------------------------
SECTION 8.01. Termination Upon Expiration Date. Unless earlier
---------------------------------
terminated, the Trust shall automatically dissolve on [ ], 2038 (the "Expiration
Date"), following the distribution of the Trust Property in accordance with
Section 8.04.
SECTION 8.02. Early Termination. The earliest to occur of any of the
------------------
following events is an "Early Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of the Depositor or an acceleration of the
maturity of the Debentures pursuant to Section 6.02 of the Indenture;
(b) upon the election of the Depositor to liquidate the Trust and
cause the distribution of a Like Amount of Debentures to the Holders of the
Trust Securities;
(c) the redemption of all of the Trust Securities; and
47
(d) an order for dissolution of the Trust shall have been entered by
a court of competent jurisdiction.
The election of the Depositor pursuant to Section 8.02(b) shall be
made by the Depositor giving written notice to the Trustees not less than 30
days prior to the date of distribution of the Debentures. Such notice shall
specify the date of distribution of the Debentures and shall be accompanied by
an Opinion of Counsel that such event will not be a taxable event to the Holders
of the Trust Securities for Federal income tax purposes.
SECTION 8.03. Termination. The respective obligations and
------------
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Securityholders upon the liquidation of the Trust
pursuant to Section 8.04, or upon the redemption of all of the Trust Securities
pursuant to Section 4.02, of all amounts required to be distributed hereunder
upon the final payment of the Trust Securities; (b) the payment of any expenses
owed by the Trust and satisfaction of all liabilities of the Trust in accordance
with the law; (c) the discharge of all administrative duties of the
Administrative Trustee, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders and (d) the filing
by the Administrative Trustee of a certificate of cancellation in accordance
with Section 3810 of the Delaware Business Trust Act.
SECTION 8.04. Liquidation. (a) If an Early Termination Event
------------
specified in clause (a), (c) or (d) of Section 8.02 occurs or upon the
Expiration Date, the Trust shall be liquidated by the Administrative Trustee as
expeditiously as the Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, to each Securityholder a Like Amount of Debentures, subject to Section
8.04(d). If an Early Termination Event specified in clause (b) occurs, the
Trust shall be liquidated by the Trustee on the date of distribution of the
Debentures specified by the Depositor in its notice delivered pursuant to
Section 8.02. Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
48
(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 mechanics by which
Holders may exchange Trust Securities Certificates for certificates
evidencing Debentures, or, if Section 8.04(d) applies, receive a
Liquidation Distribution, as the Administrative Trustee or the Property
Trustee shall deem appropriate.
(b) In order to effect the liquidation of the Trust and distribution
of the Debentures to Securityholders, the Property Trustee, either itself acting
as exchange agent or through the appointment of a separate exchange agent, shall
establish such procedures as it shall deem appropriate to effect the
distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 8.02(c) or 8.04(d) applies, on or 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 Administrative Trustee or its agent for exchange, (iii) the
Depositor shall use its best efforts to have the Debentures listed on the New
York Stock Exchange or such other exchange as the Preferred Securities are then
listed and shall take any reasonable action necessary to effect the distribution
of the Debentures, (iv) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the last Distribution
Date on which a Distribution was made on such Trust Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments or interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights of
Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive Debentures upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 8.04, whether because of an order for termination 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, the Trust Property shall be liquidated, and the Trust shall be
terminated, by the Administrative Trustee
49
in such manner as the Administrative Trustee determines. In such event, on the
date of the termination of the Trust, Securityholders will be entitled to
receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the 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
termination, the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such termination pro rata
(determined as aforesaid) with Holders of Preferred Securities, except that, if
a Debenture Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities, and no Liquidation
Distribution will be paid to the Holders of the Common Securities unless and
until receipt by all Holders of the Preferred Securities of the entire
Liquidation Distribution payable in respect thereof.
ARTICLE IX
Mergers, Etc.
-------------
SECTION 9.01. Mergers, Consolidations, Amalgamations or Replacements
------------------------------------------------------
of the Trust. The Trust may not merge with or into, consolidate, amalgamate, or
- -------------
be replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any corporation or other entity,
except as described below. The Trust may, at the request of the Depositor, with
the consent of the Administrative Trustee and without the consent of the Holders
of the Preferred Securities, merge with or into, consolidate, amalgamate, or be
replaced by, 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 Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred Securities rank with
respect to the payment of Distributions and payments upon liquidation and
50
redemption, (ii) the Depositor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debentures, (iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed, (iv) such merger, consolidation, amalgamation or
replacement does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the Holders of
the Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose substantially similar to that
of the Trust, (vii) prior to such merger, consolidation, amalgamation or
replacement, the Depositor has received an Opinion of Counsel to the effect that
(a) such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, amalgamation or replacement, neither the
Trust nor such successor entity will be required to register as an investment
company under the 1940 Act and (viii) the Depositor or any permitted successor
assignee owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee and this Trust
Agreement. Notwithstanding the foregoing, the Trust shall not, except with the
consent of all Holders of the Preferred Securities, merge with or into,
consolidate, amalgamate, or be replaced by, any other entity or permit any other
entity to consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger or replacement would cause the Trust or the
successor entity not to be classified as a grantor trust for United States
Federal income tax purposes.
ARTICLE X
Miscellaneous Provisions
------------------------
SECTION 10.01. Limitation of Rights of Securityholders. The death or
----------------------------------------
incapacity of any Person having an interest, beneficial or otherwise, in Trust
Securities shall not operate to terminate this Trust
51
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in 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 10.02. Amendment. (a) This Trust Agreement may be amended
----------
from time to time by each Trustee subject to Section 10.02(e) and 10.02(g) and
the Depositor, without the consent of any other Trustee or the Securityholders,
to cure any ambiguity, defect or inconsistency or make any other change which
does not adversely affect in any material respect the interests of any Holder of
Preferred Securities. Any amendments of this Trust Agreement pursuant to Section
10.02(a) shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 10.02(a) and 10.02(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the
Depositor with the consent of Holders of at least a majority of the aggregate
Liquidation Amount of the Outstanding Preferred Securities.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount, timing or currency
of any Distribution or Liquidation Distribution on the Trust Securities or
otherwise adversely affect the method of payment of any Distribution or
Liquidation Distribution required to be made in respect of the Trust Securities
as of a specified date; (ii) change the redemption provisions of the Trust
Securities; (iii) restrict the right of a Securityholder to institute suit for
the enforcement of any such payment contemplated in (i) or (ii) above on or
after the related date; (iv) modify the first sentence of Section 2.06 hereof;
(v) authorize or issue any beneficial interest in the Trust other than as
contemplated by this Trust Agreement as of the date hereof; (vi) change the
conditions precedent for the Depositor to elect to terminate the Trust and
distribute the Debentures to Holders of Preferred Securities as set forth in
Section 8.02; or (vii) affect the limited liability of any Holder of Preferred
Securities, and, notwithstanding any other provision herein, without the
unanimous consent of the Securityholders (such consent being obtained in
accordance with Section 6.03 or 6.06 hereof), paragraphs (b) and (c) of this
Section 10.02 may not be amended.
52
(d) Notwithstanding any other provisions of this Trust Agreement, no
amendment to this Trust Agreement shall be made without receipt by the Trust of
an Opinion of Counsel experienced in such matters to the effect that such
amendment will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes or its exemption from regulation as an
"investment company" under the 1940 Act.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Property Trustee or the Delaware Trustee, this Trust
Agreement may not be amended in a manner which imposes any additional obligation
on the Property Trustee or the Delaware Trustee.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustee shall promptly provide to the Property Trustee or the
Delaware Trustee a copy of such amendment.
(g) In executing any amendment to the Trust Agreement, the Property
Trustee and the Delaware Trustee shall be entitled to receive, and (subject to
Section 8.01) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Trust Agreement. Except as contemplated by Section 7.11, the Trustee may, but
shall not be obligated to, enter into any amendment to this Trust Agreement
which affects the Trustee's own rights, duties or immunities under this Trust
Agreement or otherwise.
SECTION 10.03. Severability. 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 10.04. GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS
--------------
AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES.
SECTION 10.05. Payments Due on Non-Business Day. If the date fixed
---------------------------------
for any payment on any Trust Security shall be a day which is not a Business
Day, then such payment need not be made on such date but may be made on the next
succeeding day which is a Business Day, except that if such Business day is in
the next succeeding calendar year,
53
payment of such Distributions shall be made on the immediately preceding
Business Day, (except as otherwise provided therein, with the same force and
effect as though made on the date fixed for such payment), and no interest shall
accumulate thereon for the period after such date to the date of payment on such
succeeding day.
SECTION 10.06. Successors and Assigns. This Trust Agreement shall be
-----------------------
binding upon and shall inure to the benefit of any successor to the Trust or
successor Trustee or both, including any successor by operation of law. Except
in connection with a consolidation, merger or sale involving the Depositor that
is permitted under Article V 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 10.07. Headings. The Article and Section headings are for
---------
convenience only and shall not affect the construction of this Trust Agreement.
SECTION 10.08. Reports, Notices and Demands. Any report, notice,
-----------------------------
demand or other communication which by any provision of this Trust Agreement is
required or permitted to be given or served to or upon any Securityholder or the
Depositor may be given or served in writing by deposit thereof, first-class
postage prepaid in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a Holder of a
Preferred Security, to such Holder of a Preferred Security as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Holder of a Common Security or the Depositor, to South Jersey
Gas Company, Number One South Jersey Plaza, Route 54, Folsom, New Jersey 08037,
Attention: Treasurer, facsimile no.: 609-561-8225. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee or the Administrative Trustee shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee to The Bank of New York, 101 Barclay
Street-21W, New York, New York 10286, Attention: Corporate Trust Office; (b)
with respect to the Delaware Trustee, to 23 White Clay Center Route 273 Newark,
Delaware 19711, Attention: Corporate Trust Department; and (c) with respect to
the Administrative Trustee, to the address above for
54
notices to the Depositor, marked "Attention: Administrative Trustee of SJG
Capital Trust, c/o Treasurer." Such notice, demand or other communication to or
upon the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
SECTION 10.09. Agreement Not to Petition. Each of the Trustees and
--------------------------
the Depositor agree for the benefit of the Securityholders that, until at least
one year and one day after the Trust has been terminated in accordance with
Article VIII, they shall not file, or join in the filing of, a petition against
the Trust under any Bankruptcy Laws or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor or any of the Trustees takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of Securityholders, that at
the expense of the Depositor, it shall file an answer with the bankruptcy court
or otherwise properly contest the filing of such petition by the Depositor or
any of the Trustees, as applicable, against the Trust or the commencement of
such action and raise the defense that the Depositor has agreed in writing not
to take such action and should be stopped and precluded therefrom and such other
defenses, if any, as counsel for the Property Trustee or the Trust may assert.
The provisions of this Section 10.09 shall survive the termination of this Trust
Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture
--------------------------------------------------
Act. (a) This Trust Agreement is subject to the provisions of the Trust
- ----
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Trust Agreement
as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
55
SECTION 10.11. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND
-----------------------------------------------------
INDENTURE. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
- ----------
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
SOUTH JERSEY GAS COMPANY,
as Depositor,
by
_______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee,
by _______________________________
Name:
Title:
THE BANK OF NEW YORK
(DELAWARE), as Delaware
Trustee,
by _______________________________
Name:
Title:
_______________________________
as Administrative Trustee
EXHIBIT A
CERTIFICATE OF TRUST
OF
SJG CAPITAL TRUST
THIS CERTIFICATE OF TRUST of SJG Capital Trust (the "Trust"), dated
February [ ], 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. Sec. 3801 et seq.).
(i) Name. The name of the business trust being formed hereby is SJG
-----
Capital Trust.
(ii) Delaware Trustee. The name and business address of the trustee
-----------------
of the Trust in the State of Delaware are The Bank of New York (Delaware), 23
White Clay Center, Route 273, Newark, Delaware 19711, Attention: Corporate Trust
Department.
(iii) Counterparts. This Certificate of Trust may be executed in one
-------------
or more counterparts, all of which together shall constitute one and the same
instrument.
(iv) Effective Date. This Certificate of Trust shall be effective as
---------------
of its filing.
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, as
Trustee,
by
_______________________________
Name:
Title:
2
THE BANK OF NEW YORK
(DELAWARE), as Trustee,
by
_______________________________
Name:
Title:
by
_______________________________
Name:
Title: Administrative Trustee
EXHIBIT B
February [ ], 1997
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: General Counsel's Office
Re: SJG Capital Trust Preferred Securities
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to
the issuance and deposit with The Depository Trust Company ("DTC") of the SJG
Capital Trust [ ]% Preferred Securities (the "Preferred Securities"), of SJG
Capital Trust, a Delaware business trust (the "Issuer"), created pursuant to a
Trust Agreement between South Jersey Gas Company ("SJGC"), The Bank of New York,
as Property Trustee, the Delaware Trustee named therein and the Administrative
Trustee named therein. The payment of distributions on the Preferred Securities
and payments due upon liquidation of the Issuer or redemption of the Preferred
Securities are guaranteed by SJGC, to the extent the Issuer has funds available
for the payment thereof and to the extent set forth in a Guarantee Agreement
dated March [ ], 1997 by SJGC and backup undertakings relating thereto with
respect to the Preferred Securities. The Issuer proposes to sell the Preferred
Securities to certain Underwriters (the "Underwriters") pursuant to an
Underwriting Agreement dated March [ ], 1997 by and among the Underwriters, the
Issuer and SJGC and the Underwriters wish to take delivery of the Preferred
Securities through DTC. The Bank of New York is acting as transfer agent and
registrar with respect to the Preferred Securities (the "Transfer Agent and
Registrar").
To induce DTC to accept the Preferred Securities as eligible for
deposit at DTC, and to act in accordance with DTC's Rules with respect to the
Preferred Securities, the Issuer and the Transfer Agent and Registrar make the
following representations to DTC:
1. Prior to the closing of the sale of the Preferred Securities to
the Underwriters, which is expected to occur on or about [ ], 1997, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the name of DTC's nominee,
Cede & Co., representing an aggregate of 1,400,000 Preferred Securities and
bearing the following legend:
2
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the 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 hereon
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.
2. The Amended and Restated Trust Agreement of the Issuer provides
for the voting by holders of the Preferred Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance of such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance of
rights with respect to, the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable expiration or
deadline date or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending
3
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 20
calendar days nor more than 90 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212) 709-
1723. Such notices 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, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm DTC's
receipt of such telecopy by telephoning the Dividend Department at (212) 709-
1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes) shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094
and receipt
4
of such notice shall be confirmed by telephoning (212) 709-6884, or by mail or
any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advances sent to DTC shall contain the
CUSIP number or numbers of the Preferred Securities and the accompanying
designation of the Preferred Securities, which, as of the date of this letter,
is "SJG Capital Trust [ ]% Preferred Securities".
8. Distribution payments or other cash payments with respect to the
Preferred Securities evidenced by the Global Certificate shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in same day funds on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be made
payable to the order of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
9. DTC may by prior written notice direct the Issuer and the
Transfer Agent and Registrar to use any other telecopy number or address of DTC
as the number or address to which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by a global
certificate, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new global certificate; or (b)
may make an appropriate notation on such global certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities depositary with
respect to the Preferred Securities at any time by giving reasonable prior
written notice to the Issuer and the Transfer Agent and Registrar (at which time
DTC will confirm with the Issuer or the Transfer Agent and Registrar the
aggregate number of
5
Preferred Securities deposited with it) and discharging its responsibilities
with respect thereto under applicable law. Under such circumstances, the Issuer
may determine to make alternative arrangements for book-entry settlement for the
Preferred Securities, make available one or more separate global certificates
evidencing Preferred Securities to any Participant having Preferred Securities
credited to its DTC account, or issue definitive Preferred Securities to the
beneficial owners thereof, and in any such case, DTC agrees to cooperate fully
with the Issuer and the Transfer Agent and Registrar and to return the global
certificates duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
12. In the event that the Issuer determines that beneficial owners of
the global certificate(s) evidencing Preferred Securities shall be able to
obtain definitive Preferred Securities, the Issuer or the Transfer Agent and
Registrar shall notify DTC of the availability of such definitive Preferred
Securities. In such event, the Issuer or the Transfer Agent and Registrar shall
issue, transfer and exchange definitive Preferred Securities in appropriate
amounts, as required by DTC and others, and DTC agrees to cooperate fully with
the Issuer and the Transfer Agent and Registrar and to return the global
certificate(s), duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
6
Nothing herein shall be deemed to require the Transfer Agent and
Registrar to advance funds on behalf of the Issuer.
Very truly yours,
SJG CAPITAL TRUST, as Issuer,
By
_______________________________
Name:
Title: Administrative Trustee
THE BANK OF NEW YORK, as
Transfer Agent and Registrar,
By
_______________________________
Name:
Title:
RECEIVED AND ACCEPTED: THE
DEPOSITORY TRUST COMPANY
By
_______________________________
Name:
Title:
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number C.
Number of Common Securities [43,289]
Certificate Evidencing Common Securities
of
SJG Capital Trust [ ]% Common Securities
(liquidation amount $25 per Common Security)
SJG Capital Trust, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that South Jersey Gas
Company (the "Holder") is the registered owner of [Forty-Three Thousand Two
Hundred and Ninety-Nine] ([43,299]) common securities of the Trust representing
undivided beneficial interests in the assets of the Trust and designated as the
[ ]% Common Securities (liquidation amount $25 per Common Security) (the
"Common Securities"). In accordance with Section 5.10 of the Trust Agreement (as
defined below), the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of March [ ], 1997, as the same may be amended from time to time (the "Trust
Agreement"). The Trust will furnish a copy of the Trust Agreement to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
2
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Administrative Trustee of the Trust has
executed this certificate this [ ] day of March, 1997.
SJG CAPITAL TRUST,
By
________________________________
Name:
Title: Administrative Trustee
EXHIBIT D
Certificate Number P1
Number of Preferred Securities
CUSIP NO. [ ]
Certificate Evidencing Preferred Securities
of
SJG Capital Trust
[ ]% Preferred Securities
(liquidation amount $25 per Preferred Security)
SJG Capital Trust, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of [One Million Four Hundred Thousand]
([1,400,000]) preferred securities of the Trust representing an undivided
beneficial interest in the assets of the Trust and designated the SJG Capital
Trust [ ]% Preferred Securities (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.04 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of March [ ], 1997, as the same
may be amended from time to time (the "Trust Agreement"). The Holder is
entitled to the benefits of the Guarantee Agreement entered into by South Jersey
Gas Company, a New Jersey corporation, and The Bank of New York, as guarantee
trustee, dated as of March [ ], 1997 (the "Guarantee") to the extent provided
therein, together with the obligations of South Jersey Gas Company under the
Trust Agreement, its Deferrable Interest Subordinated Debentures and the
Indenture related to such Deferrable Interest Subordinated Debentures. The
Trust will furnish a copy of the Trust Agreement, the Indenture and the
Guarantee to the Holder without charge upon written request to the Trust at its
principal place of business or registered office. By acceptance of the
Preferred Securities, the Holder thereof agrees to treat and take no action (i)
inconsistent with the treatment of the Preferred Securities (or beneficial
2
interests therein) as an interest in a Grantor Trust for purposes of federal,
state and local, income and franchise taxes and (ii) with respect to the Trust
or any interest therein that would cause the Trust to be treated as an
association or publicly traded partnership taxable as a corporation for purposes
of federal income tax law.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Administrative Trustee of the Trust has
executed this certificate this [ ] day of March, 1997.
SJG CAPITAL TRUST,
By
_______________________________
Name:
Title: Administrative Trustee
3
[To be included in Book-Entry Preferred Securities Certificate]
This Preferred Security is a Book-Entry Preferred Securities
Certificate within the meaning of the Trust Agreement previously referred to and
is registered in the name of The Depository Trust Company (the "Depository") or
a nominee of the Depository. This Preferred Security is exchangeable for
Preferred Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in the
Trust Agreement and no transfer of this Preferred Security (other than a
transfer of this Preferred Security as a whole by the Depository to a nominee of
the Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company, a New York corporation, (55
Water Street, New York) to SJG Capital Trust or its agent for registration of
transfer, exchange or payment, and any Preferred Security issued is registered
in the name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment hereon is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of The Depository Trust Company, ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers to: [Insert
assignee's social security or tax identification number] [Insert address and zip
code of assignee] Preferred Securities represented by this Preferred Securities
Certificate and irrevocably appoints agent to
4
transfer said Preferred Securities on the books of the Trust. The agent may
substitute another to act for him or her.
Date:___________________ Signature:_________________________
(Sign exactly as your name appears
on the other side of this Preferred
Security Certificate)