Exhibit 4.03
TRUST AGREEMENT
TRUST AGREEMENT dated as of October 8, 1997, by and between South Carolina
Electric & Gas Company, a South Carolina corporation, as "Depositor," and The
Bank of New York (Delaware), as trustee (the "Delaware Trustee"), and X. X.
Xxxxxx, as trustee (the "Administrative Trustee" and together with the Delaware
Trustee, the "Trustees").
The Depositor and the Trustees hereby agree as follows:
Section 1. The Trust. The trust created hereby shall be known as "SCE&G
Trust I" (the "Trust"), in which name the Trustees, or the Depositor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
Section 2. The Trust Estate. The Depositor hereby assigns, transfers,
conveys and sets over to the Trust the sum of $10. Such amount shall constitute
the initial trust estate. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Section 3801 et seq. (the "Business Trust Act"),
and that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
Section 3. Amended and Restated Trust Agreement. The Depositor, the
Trustees and certain other parties will enter into an amended and restated Trust
Agreement, satisfactory to each such party and substantially in the form to be
included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities (as defined below) and common
securities of the Trust to be referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustees shall not
have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery and licenses, consents or approvals
required by applicable law or otherwise.
Section 4. Certain Authorizations. The Depositor, as the sponsor of the
Trust, is hereby authorized, (i) to file with the Securities and Exchange
Commission (the "Commission") and execute, in each case on behalf of the Trust
(a) the Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments to such
1933 Act Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the Securities Act of
1933, as amended, of the preferred securities of the Trust (the "Preferred
Securities") and certain other securities of the Depositor and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under Section 12 of
the Securities Exchange Act of 1934, as amended; (ii) to file with one or more
national securities exchanges (each, an "Exchange") or the National Association
of Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange or
the NASD's Nasdaq National Market; (iii) to file and execute on behalf of the
Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as the Depositor on behalf of the Trust, may deem necessary or desirable to
register the Preferred Securities under the securities or "Blue Sky" laws; and
(iv) to execute on behalf of the Trust such Underwriting Agreements with one or
more underwriters relating to the offering of the Preferred Securities as the
Depositor, on behalf of the Trust, may deem necessary or desirable. In the event
that any filing referred to in clauses (i), (ii) or (iii) above is required by
the rules and regulations of the Commission, any Exchange, the NASD or state
securities or "Blue Sky" laws, to be executed on behalf of the Trust by a
Trustee, the Depositor and any Trustee are hereby authorized to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing; it
being understood that The Bank of New York (Delaware), in its capacity as a
trustee of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by any such
law, rule or regulation.
Section 5. Counterparts. This Trust Agreement may be
executed in one or more counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the
same instrument.
Section 6. Trustees. The number of Trustees initially shall be two (2) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor, which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon thirty days' prior notice to
the Depositor, provided, however, such notice shall not be required if it is
waived by the Depositor.
Section 7. Limitation. The Bank of New York (Delaware), in its capacity as
a Trustee, shall not have any of the powers or duties of the Trustees set forth
herein, except as expressly required by the Business Trust Act, and shall be a
trustee of the Trust for the sole purpose of satisfying the requirements of
Section 3807 of the Business Trust Act.
Section 8. Governing Law. This Trust Agreement shall be
governed by, and construed in accordance with, the laws of the
State of Delaware (without regard to conflicts of law principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
SOUTH CAROLINA ELECTRIC & GAS
COMPANY, as Depositor
By: s/X. X. Xxxxxx
Name: X. X. Xxxxxx
