Exhibit 4-M
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AMENDED AND RESTATED TRUST AGREEMENT
AMONG
SOUTH CAROLINA ELECTRIC & GAS COMPANY,
as Depositor
THE BANK OF NEW YORK,
as Property Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
and
THE SEVERAL HOLDERS (as defined herein)
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Dated as of October 28, 1997
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SCE&G TRUST I
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SCE&G TRUST I
Certain Sections of this Trust Agreement relating
to Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310 (a)(1) 8.7
(a)(2) 8.7
(a)(3) 8.9
(a)(4) 2.7(a)(ii)
(a)(5) 8.7(a)(5)
(b) 8.8
(c) Not Applicable
Section 311 (a) 8.13
(b) 8.13
(c) Not Applicable
Section 312 (a) 5.8
(b) 5.8
(c) 5.8
Section 313 (a) 8.15(a)
(b) 8.15(b)
(c) 10.8
(d) 8.15(c)
Section 314 (a) 8.16
(b) Not Applicable
(c)(1) 8.17
(c)(2) 8.17
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.1, 8.17
Section 315 (a) 8.1(d)(i)
(b) 8.2, 10.8
(c) 8.1(c)
(d) 8.1, 8.3
(e) Not Applicable
Section 316 (a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) 5.13(c)
(c) 6.7
Section 317 (a)(1)Not Applicable
(a)(2)Not Applicable
(b)5.10
Section 318 (a)10.10
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
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TABLE OF CONTENTS
ARTICLE I
DEFINED TERMS 8
SECTION 1.1. Definitions. 8
ARTICLE II
CONTINUATION OF THE ISSUER TRUST 18
SECTION 2.1. Name. 18
SECTION 2.2. Office of the Delaware Trustee; Principal
Place of Business 18
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses 18
SECTION 2.4. Issuance of the Trust Preferred Securities 19
SECTION 2.5. Issuance of the Common Securities;
Subscription and Purchase of Debentures 19
SECTION 2.6. Continuation of Trust 19
SECTION 2.7. Authorization to Enter into Certain
Transactions 20
SECTION 2.8. Assets of Trust 24
SECTION 2.9. Title to Trust Property 24
ARTICLE III
PAYMENT ACCOUNT 24
SECTION 3.1. Payment Account 24
ARTICLE IV
REDEMPTION 25
SECTION 4.1. Distributions 25
SECTION 4.2. Redemption 26
SECTION 4.3. Subordination of Common Securities 28
SECTION 4.4. Payment Procedures 29
SECTION 4.5. Tax Returns and Reports 29
SECTION 4.6. Payment of Taxes, Duties, Etc. of
the Issuer Trust 29
SECTION 4.7. Payments under Indenture or Pursuant
to Direct Actions 30
ARTICLE V
TRUST SECURITIES CERTIFICATES 30
SECTION 5.1. Initial Ownership 30
SECTION 5.2. The Trust Securities Certificates 30
SECTION 5.3. Execution and Delivery of Trust Securities
Certificates 31
SECTION 5.4. Book-Entry Trust Preferred Securities 31
SECTION 5.5. Registration of Transfer and Exchange of
Trust Preferred Securities Certificates 33
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates 35
SECTION 5.7. Persons Deemed Holders 36
SECTION 5.8. Access to List of Holders' Names
and Addresses 36
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SECTION 5.9. Maintenance of Office or Agency 36
SECTION 5.10. Appointment of Paying Agent 36
SECTION 5.11. Ownership of Common Securities by Depositor 37
SECTION 5.12. Notices to Clearing Agency 37
SECTION 5.13. Rights of Holders; Waivers of Past Defaults 38
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING 40
SECTION 6.1. Limitations on Voting Rights 40
SECTION 6.2. Notice of Meetings 42
SECTION 6.3. Meetings of Holders of the Trust Preferred
Securities 42
SECTION 6.4. Voting Rights 42
SECTION 6.5. Proxies, etc 43
SECTION 6.6. Holder Action by Written Consent 43
SECTION 6.7. Record Date for Voting and Other Purposes 43
SECTION 6.8. Acts of Holders 44
SECTION 6.9. Inspection of Records 45
ARTICLE VII
REPRESENTATIONS AND WARRANTIES 45
SECTION 7.1. Representations and Warranties of the
Property Trustee and the Delaware Trustee 45
SECTION 7.2. Representations and Warranties of Depositor 46
ARTICLE VIII
THE ISSUER TRUSTEES 47
SECTION 8.1. Certain Duties and Responsibilities 47
SECTION 8.2. Certain Notices 50
SECTION 8.3. Certain Rights of Property Trustee 50
SECTION 8.4. Not Responsible for Recitals or Issuance
of Securities 52
SECTION 8.5. May Hold Securities 53
SECTION 8.6. Compensation; Indemnity; Fees 53
SECTION 8.7. Corporate Property Trustee Required;
Eligibility of Issuer Trustees 54
SECTION 8.8. Conflicting Interests 54
SECTION 8.9. Co-Trustees and Separate Trustee 55
SECTION 8.10. Resignation and Removal; Appointment of
Successor 56
SECTION 8.11. Acceptance of Appointment by Successor 58
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business 59
SECTION 8.13. Preferential Collection of Claims Against
Depositor or Issuer Trust 59
SECTION 8.14. Property Trustee May File Proofs of Claim 59
SECTION 8.15. Reports by Property Trustee 60
SECTION 8.16. Reports to the Property Trustee 61
SECTION 8.17. Evidence of Compliance with Conditions
Precedent 61
SECTION 8.18. Number of Issuer Trustees 61
SECTION 8.19. Delegation of Power 61
SECTION 8.20. Appointment of Administrative Trustees 62
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ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER 63
SECTION 9.1. Dissolution Upon Expiration Date 63
SECTION 9.2. Early Dissolution 63
SECTION 9.3. Termination 63
SECTION 9.4. Liquidation 64
SECTION 9.5. Mergers, Consolidations, Amalgamations
or Replacements of Issuer Trust 65
ARTICLE X
MISCELLANEOUS PROVISIONS 67
SECTION 10.1. Limitation of Rights of Holders 67
SECTION 10.2. Amendment 67
SECTION 10.3. Separability 68
SECTION 10.4. Governing Law 68
SECTION 10.5. Payments Due on Non-Business Day 69
SECTION 10.6. Successors 69
SECTION 10.7. Headings 69
SECTION 10.8. Reports, Notices and Demands 69
SECTION 10.9. Agreement Not to Petition 70
SECTION 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act 70
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee Agreement and Indenture 71
Exhibit A Certificate of Trust
Exhibit B Form of Letter of Representations
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Trust Preferred Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of October 28, 1997, among
(i) South Carolina Electric & Gas Company, a
South Carolina corporation (including any successors or assigns, the
"Depositor"), (ii) The Bank of New York, a New York banking corporation, as
property trustee (in such capacity, the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) The Bank of New York (Delaware), a Delaware banking corporation,
as Delaware trustee (in such capacity, the "Delaware Trustee"),
(iv) X. X. Xxxxxx, an individual, K. B. Xxxxx, an individual, and X. X. Xxxxxx,
an individual, each of whose address is c/o South Carolina Electric
& Gas Company, 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000 (each an
"Administrative Trustee" and collectively the "Administrative Trustees")
(the Property Trustee, the Delaware Trustee and the Administrative Trustees
being referred to collectively as the "Issuer Trustees") and (iv) the
several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, Delaware Trustee and an Administrative Trustee
have heretofore duly declared and established a business trust
pursuant to the Delaware Business Trust Act (as defined herein) by entering
into the Trust Agreement, dated as of October 8, 1997 (the "Original
Trust Agreement") and by the execution and filing with the Secretary of State
of the State of Delaware of the Certificate of Trust, filed on October
8, 1997, attached as Exhibit A; and
WHEREAS, the Depositor and the Issuer Trustees desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein
to provide for, among other things, (i) the issuance of the Common Securities
(as defined herein) by the Issuer Trust to the Depositor, (ii) the
issuance and sale of the Trust Preferred Securities (as defined herein) by the
Issuer Trust pursuant to the Underwriting Agreement (as defined
herein), (iii) the acquisition by the Issuer Trust from the Depositor of all of
the right, title and interest in the Debentures (as defined herein) and
(iv) the appointment of the Property Trustee and the Administrative Trustees;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, each party, for the
benefit of the other parties and for the benefit of the Holders, hereby
amends and restates the Original Trust Agreement in its entirety and agrees as
follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned
to them therein;
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(c) The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted
accounting principles;
(e) Unless the context otherwise requires, any reference to an "Article,"
a "Section" or an "Exhibit" refers to an Article, a Section or an
Exhibit, as the case may be, of or to this Trust Agreement; and
(f) The words "hereby," "herein," "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and
not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like
Amount of Debentures for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each of the Persons appointed in accordance
with Section 8.20 solely in such Person's capacity as Administrative
Trustee of the Issuer Trust heretofore formed and continued hereunder and not in
such Person's individual capacity, or any successor Administrative
Trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Book-Entry Trust Preferred Security, the rules and
procedures of the Clearing Agency for such Book-Entry Trust Preferred
Security, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
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(a) the entry of a decree or order by a court having jurisdiction
in the premises judging such Person a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under
any applicable federal or state bankruptcy, insolvency, reorganization
or other similar law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of such Person or of any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy
or insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or similar official)
of such Person or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due and its
willingness to be adjudicated a bankrupt, or the taking of corporate action
by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor or
the Executive Committee of the board of directors of the Depositor (or
any other committee of the board of directors of the Depositor performing
similar functions) or a committee designated by the board of directors
of the Depositor (or any such committee), comprised of two or more members
of the board of directors of the Depositor or officers of the Depositor,
or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or officers of the Depositor to which
authority to act on behalf of the Board of Directors has been delegated
and to be in full force and effect on the date of such certification, and
delivered to the Issuer Trustees.
"Book-Entry Trust Preferred Securities Certificate" means a Trust
Preferred Securities Certificate evidencing ownership of Book-Entry Trust
Preferred Securities.
"Book-Entry Trust Preferred Security" means a Trust Preferred Security,
the ownership and transfers of which shall be made through book entries
by a Clearing Agency as described in Section 5.4.
"Business Day" means a day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized
or required by law or executive order to remain closed or (iii) a day on
which the Property Trustee's Corporate Trust Office or the Corporate Trust
Office of the Debenture Trustee is closed for business.
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"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. DTC will be the initial
Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership
of Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means a common undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $25 and
having the rights provided therefor in this Trust Agreement, including
the right to receive Distributions and a Liquidation Distribution to the extent
provided herein.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal office of the Property Trustee located in
New York, New York, and (ii) when used with respect to the Debenture Trustee,
the principal office of the Debenture Trustee located in Wilmington, Delaware.
"Debenture Event of Default" means any "Event of Default" specified in
Section 5.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption of
such Debentures under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means the Person identified as the "Trustee" in the
Indenture, solely in its capacity as Trustee pursuant to the Indenture
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Trustee appointed as provided in the Indenture.
"Debentures" means the Depositor's 7.55% Junior Subordinated Deferrable
Interest Debentures, Series A, issued pursuant to the Indenture.
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"Definitive Trust Preferred Securities Certificates" means either or
both (as the context requires) of (i) Trust Preferred Securities Certificates
issued as Book-Entry Trust Preferred Securities Certificates as provided in
Section 5.2 or 5.4 and (ii) Trust Preferred Securities Certificates issued
in certificated, fully registered form as provided in Section 5.2, 5.4 or 5.5.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended
from time to time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee"
in the preamble to this Trust Agreement, solely in its capacity as
Delaware Trustee of the trust heretofore formed and continued hereunder
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Delaware Trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever
the reason for such event and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative
or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Issuer Trust in the payment of any Redemption Price
of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Issuer Trustees in this Trust Agreement
(other than those specified in clause (b) or (c) above) and continuation of
such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Issuer Trustees and to the Depositor
by the Holders of at least 25% in aggregate Liquidation Amount of the
Outstanding Trust Preferred Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee if a successor Property Trustee has not been appointed within
90 days thereof.
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"Exchange Act" means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, as guarantee
trustee, contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the holders of the Trust Preferred
Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities are registered in the Securities Register; any such Person shall be
a beneficial owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of
October 28, 1997, between the Depositor and the Debenture Trustee, as trustee,
as amended or supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940, or
any successor statute thereto, in each case as amended from time to
time.
"Issuer Trust" means the Delaware business trust known as "SCE&G Trust
I" which was formed on October 8, 1997 under the Delaware Business
Trust Act pursuant to the Original Trust Agreement and the filing of the
Certificate of Trust, and continued pursuant to this Trust Agreement.
"Issuer Trustees" has the meaning specified in the preamble to this
Trust Agreement.
"Letter of Representations" means the agreement among the Issuer Trust,
the Property Trustee and DTC, as the initial Clearing Agency, dated
as of the Closing Date, substantially in the form attached as Exhibit B,
as the same may be amended and supplemented from time to time.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (i) with respect to a redemption of any Trust
Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Debentures to be contemporaneously redeemed in
accordance with the Indenture, the proceeds of which will be used to pay the
Redemption Price of such Trust Securities, (ii) with respect to a
distribution of Debentures to Holders of Trust Securities in connection with a
dissolution or liquidation of the Issuer Trust, Debentures having a principal
amount equal to the Liquidation Amount of the Trust Securities of the
Holder to whom such Debentures are distributed and (iii) with respect to
any distribution of Additional Amounts to Holders of Trust Securities,
Debentures having a principal amount equal to the Liquidation Amount of
the Trust Securities in respect of which such distribution is made.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
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"Liquidation Date" means the date of the dissolution, winding-up or
termination of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Trust Preferred Securities" or
"Majority in Liquidation Amount of the Common Securities" means, except
as provided by the Trust Indenture Act, Trust Preferred Securities or
Common Securities, as the case may be, representing more than 50% of the
aggregate Liquidation Amount of all then Outstanding Trust Preferred
Securities or Common Securities, as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, the Chief Executive Officer, the Chief Financial
Officer, any Vice President or the Treasurer and by the Secretary or an
Assistant Secretary of the Depositor and delivered to the Issuer Trustees.
Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the
Depositor.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding," when used with respect to Trust Securities, means, as
of the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property Trustee
or any Paying Agent; provided that, if such Trust Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this Trust
Agreement; and
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(c) Trust Securities that have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and delivered pursuant
to Sections 5.4, 5.5, 5.6 and 5.11; provided, however, that in determining
whether the Holders of the requisite Liquidation Amount of the Outstanding
Trust Preferred Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Trust Preferred Securities
owned by the Depositor, any Issuer Trustee or any Affiliate of the Depositor
or of any Issuer Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Issuer Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Trust Preferred Securities that
such Issuer Trustee knows to be so owned shall be so disregarded and (b)
the foregoing shall not apply at any time when all of the outstanding Trust
Preferred Securities are owned by the Depositor, one or more of the Issuer
Trustees and/or any such Affiliate. Trust Preferred Securities so owned
that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Trust Preferred Securities and
that the pledgee is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of Book-Entry
Trust Preferred Securities as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such
Clearing Agency (directly or indirectly, in accordance with the rules
of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee for the benefit of the
Holders in which all amounts paid in respect of the Debentures will be held
and from which the Property Trustee, through the Paying Agent, shall
make payments to the Holders in accordance with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association or government
or any agency or political subdivision thereof, or any other entity of
whatever nature.
"Property Trustee" means the Person identified as the "Property Trustee"
in the preamble to this Trust Agreement, solely in its capacity as
Property Trustee of the trust heretofore formed and continued hereunder and
not in its individual capacity, and its successor in interest in such
capacity, or any successor Property Trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated
maturity of the Debentures shall be a Redemption Date for a Like
Amount of Trust Securities.
223
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium,
if any, paid by the Depositor upon the concurrent redemption of
a Like Amount of Debentures.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer," when used with respect to the Property Trustee
or the Delaware Trustee, means the chairman or any vice-chairman of the
board of directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the chairman of the trust committee, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Property Trustee or the Delaware Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Successor Trust Preferred Securities" of any particular Trust Preferred
Securities Certificate means every Trust Preferred Securities Certificate
issued after, and evidencing all or a portion of the same beneficial interest
in the Issuer Trust as that evidenced by, such particular Trust Preferred
Securities Certificate; and, for the purposes of this definition, any
Trust Preferred Securities Certificate executed and delivered under Section
5.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Trust
Preferred Securities Certificate shall be deemed to evidence the same beneficial
interest in the Issuer Trust as the mutilated, destroyed, lost or stolen
Trust Preferred Securities Certificate.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including (i) all exhibits and (ii)
for all purposes of this Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are deemed to
be a part of and govern this Trust Agreement and any such modification,
amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Preferred Securities Certificate" means a certificate evidencing
ownership of Trust Preferred Securities, substantially in the form attached
as Exhibit D.
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"Trust Preferred Security" means a preferred undivided beneficial interest
in the assets of the Issuer Trust, having a Liquidation Amount of $25
and having the rights provided therefor in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution to the
extent provided herein.
"Trust Property" means (i) the Debentures, (ii) any cash on deposit in, or
owing to, the Payment Account, and (iii) all proceeds and rights in
respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to the
trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Trust
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Trust Preferred Securities Certificates.
"Underwriters" means Credit Suisse First Boston and PaineWebber
Incorporated as the underwriters under the Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated October
22, 1997, among the Issuer Trust, the Depositor and the
underwriter or underwriters named therein, as the same may be amended from time
to time.
"Vice President," when used with respect to the Depositor, means any duly
appointed vice president, whether or not designated by a number or
a word or words added before or after the title "vice president."
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.
The trust continued hereby shall be known as "SCE&G Trust I," as such name
may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Issuer Trustees, in which name the Issuer Trustees may conduct the business
of the Issuer Trust, make and execute contracts and other instruments on
behalf of the Issuer Trust and xxx and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is Xxxxx
Xxxx Xxxxxx, Xxx 000, Xxxxxx, Xxxxxxxx 00000, Attention: Corporate
Trust Administration, or such other address in the State of Delaware
as the Delaware Trustee may designate by written notice to the Holders, the
Depositor, the Property Trustee and the Administrative Trustees. The
principal executive office of the Issuer Trust is South Carolina Electric &
Gas Company, 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Chief Financial Officer.
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SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Issuer Trust as they arise or shall, upon
request of any Issuer Trustee, promptly reimburse such Issuer Trustee for
any such expenses paid by such Issuer Trustee. The Depositor shall make no
claim upon the Trust Property for the payment of such expenses.
SECTION 2.4. Issuance of the Trust Preferred Securities.
The Depositor, both on its own behalf and on behalf of the Issuer Trust
pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on behalf of the
Issuer Trust, shall manually execute in accordance with Sections 5.2,
5.3 and 8.9(a) and the Property Trustee shall deliver to the Underwriters,
Trust Preferred Securities Certificates, registered in the names requested
by the Underwriters, evidencing an aggregate of 2,000,000 Trust Preferred
Securities having an aggregate Liquidation Amount of $50,000,000, against
receipt of the aggregate purchase price of such Trust Preferred Securities
of $50,000,000, by the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Issuer Trust, shall
execute in accordance with Sections 5.2, 5.3 and 8.9(a) and the Property
Trustee shall deliver to the Depositor, Common Securities Certificates,
registered in the name of the Depositor, evidencing an aggregate of 61,856
Common Securities having an aggregate Liquidation Amount of $1,546,400,
against receipt of the aggregate purchase price of such Common Securities
of $1,546,400, to the Property Trustee. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Issuer Trust, shall subscribe
for and purchase from the Depositor the Debentures, registered in the name
of the Property Trustee on behalf of the Issuer Trust and having an
aggregate principal amount equal to $51,546,400, and, in satisfaction of the
purchase price for such Debentures, the Property Trustee, on behalf of the
Issuer Trust, shall deliver to the Depositor the sum of $51,546,400 (being
the sum of the amounts delivered to the Property Trustee pursuant to (i)
the second sentence of Section 2.4 and (ii) the first sentence of this Section
2.5).
SECTION 2.6. Continuation of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to issue
and sell Trust Securities and use the proceeds from such sale to acquire
the Debentures and (b) to engage in those activities necessary or incidental
thereto. The Depositor hereby reaffirms the appointment of the Delaware
Trustee and appoints and reaffirms the appointment of, as the case may be,
the Administrative Trustees as trustees of the Issuer Trust, to have all
the rights, powers and duties to the extent set forth herein, and the
respective Issuer Trustees hereby accept such appointment. The Property
Trustee hereby
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declares that it will hold the Trust Property in trust upon and subject to
the conditions set forth herein for the benefit of the Issuer Trust and the
Holders. The Administrative Trustees shall have all rights, powers and duties
set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Issuer Trust. The Delaware Trustee shall
not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities, of the Property Trustee or
the Administrative Trustees set forth herein. The Delaware Trustee shall be
one of the trustees of the Issuer Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business Trust
Act and for taking such actions as are required to be taken by a Delaware
trustee under the Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees shall conduct the affairs of the Issuer
Trust in accordance with the terms of this Trust Agreement. Subject to the
limitations set forth in paragraph (b) of this Section and in accordance
with the following provisions (i) and (ii), the Issuer Trustees shall have the
authority to enter into all transactions and agreements determined by the
Issuer Trustees to be appropriate in exercising the authority, express or
implied, otherwise granted to the Issuer Trustees, as the case may be, under
this Trust Agreement and to perform all acts in furtherance thereof,
including, without limitation, the following:
(i) As among the Issuer Trustees, each Administrative
Trustee, acting singly or collectively, shall have the power and
authority to act on behalf of the Issuer Trust with respect to the
following matters:
(A) effecting the issuance and sale of the
Trust Securities;
(B) causing the Issuer Trust to enter into, and
to execute, deliver and perform, the Letter
of Representations and such other agreements
as may be necessary or desirable in
connection with the purposes and function
of the Issuer Trust;
(C) assisting in the registration of the Trust
Preferred Securities under the Securities
Act, and under applicable state
securities or blue sky laws and the
qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Trust
Preferred Securities upon such securities exchange or
exchanges as shall be determined by the Depositor, with
the registration of the Trust Preferred Securities under
the Exchange Act and with the preparation and filing of
all periodic and other reports and other documents
pursuant to the foregoing;
(E) assisting in the sending of notices (other
than notices of default) and other information regarding
the Trust Securities and the Debentures to the Holders
in accordance with this Trust Agreement;
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(F) consenting to the appointment of a Paying
Agent, authenticating agent and Securities Registrar in
accordance with this Trust Agreement (which consent shall
not be unreasonably withheld);
(G) executing the Trust Securities on behalf of
the Issuer Trust in accordance with this Trust Agreement;
(H) executing and delivering closing
certificates, if any, pursuant to the Underwriting
Agreement and applying for a taxpayer identification
number for the Issuer Trust;
and
(I) taking any action incidental to the foregoing
as the Issuer Trustees may from time to time determine to
be necessary or advisable to give effect to the terms of
this Trust Agreement.
(ii) As among the Issuer Trustees, the Property Trustee
shall have the power, duty and authority to act on behalf of the
Issuer Trust with respect to the following matters:
(A) establishing the Payment Account;
(B) receiving the Debentures;
(C) collecting interest, principal and any
other payments made in respect of the Debentures and
holding such amounts in the Payment Account;
(D) distributing through the Paying Agent of
amounts distributable to the Holders in respect of the
Trust Securities;
(E) exercising all of the rights, powers and
privileges of a holder of the Debentures;
(F) sending notices of default and other
information regarding the Trust Securities and the
Debentures to the Holders in accordance with this Trust
Agreement;
(G) distributing the Trust Property in accordance
with the terms of this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, winding up the affairs of and liquidation
of the Issuer Trust and the preparing, executing
and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) performing the duties of the Property
Trustee set forth in this Trust Agreement;
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(J) after an Event of Default (other than
under paragraph (b), (c), (d) or (e) of the definition
of such term if such Event of Default is by or with
respect to the Property Trustee) taking any action
incidental to the foregoing as the Property Trustee
may from time to time determine is necessary or
advisable to give effect to the terms of this Trust
Agreement and protect and conserve the Trust Property
for the benefit of the Holders (without consideration
of the effect of any such action on any
particular Holder); and
(K) exercising any of the duties, liabilities,
powers or the authority of the Administrative Trustees
set forth in Section 2.7(a)(i)(E) and (I) herein; and
in the event of a conflict between the action of the
Administrative Trustees and the action of
the Property Trustee, the action of the Property
Trustee shall prevail.
(b) So long as this Trust Agreement remains in effect, the Issuer
Trust (or the Issuer Trustees acting on behalf of the Issuer Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, the Issuer Trustees shall
not (i) acquire any investments or engage in any activities not authorized
by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage,
pledge, setoff or otherwise dispose of any of the Trust Property or interests
therein, including to Holders, except as expressly provided herein, (iii)
take any action that would reasonably be expected to cause the Issuer Trust
to become taxable as a corporation or classified as other than a grantor
trust for United States federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt or (v) take or consent
to any action that would result in the placement of a Lien on any of the Trust
Property. The Administrative Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Issuer Trust or the Holders in their
capacity as Holders.
(c) In connection with the issue and sale of the Trust Preferred
Securities, the Depositor shall have the right and responsibility to assist
the Issuer Trust with respect to, or effect on behalf of, the Issuer Trust,
the following (and any actions taken by the Depositor in furtherance of the
following prior to the date of this Trust Agreement are hereby ratified and
confirmed in all respects):
(i) the preparation and filing by the Issuer Trust
with the Commission and the execution on behalf of the Issuer
Trust of a registration statement on the appropriate form in
relation to the Trust Preferred Securities, including any
amendments thereto and the taking of any action necessary or
desirable to sell the Trust Preferred Securities in a transaction
or a series of transactions pursuant thereto;
(ii) the determination of the jurisdictions in which
to take appropriate action to qualify or register for sale all or
part of the Trust Preferred Securities and the taking of any and
all such acts, other than actions that must be taken by or on
behalf of the Issuer Trust, and advice to the Issuer Trust of
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actions that must be taken by or on behalf of the Issuer Trust,
and the preparation for execution and filing of any documents to
be executed and filed by the Issuer Trust or on behalf of the
Issuer Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such states in
connection with the sale of the Trust Preferred Securities;
(iii) the preparation for filing by the Issuer Trust
and execution on behalf of the Issuer Trust of an application or
applications to such securities exchange or exchanges as shall be
determined by Depositor for listing upon notice of issuance of
any Trust Preferred Securities;
(iv) the preparation for filing by the Issuer Trust
with the Commission and the execution on behalf of the Issuer Trust
of a registration statement on Form 8-A relating to the registration
of the Trust Preferred Securities under Section 12(b) or 12(g) of
the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing for the sale
of the Trust Preferred Securities; and
(vi) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Property
Trustee and the Administrative Trustees are authorized and directed to
conduct the affairs of the Issuer Trust and to operate the Issuer Trust
so that the Issuer Trust will not be deemed to be an "investment company"
required to be registered under the Investment Company Act, and will not
be taxable as a corporation or classified as other than a grantor trust for
United States federal income tax purposes and so that the Debentures will
be treated as indebtedness of the Depositor for United States federal
income tax purposes. In this connection, each Administrative Trustee, the
Property Trustee and the Holders of at least a Majority in Liquidation
Amount of the Common Securities are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that such Administrative Trustee, the Property Trustee or Holders
of Common Securities determine in their discretion to be necessary
or desirable for such purposes, as long as such action does not adversely
affect in any material respect the interests of the Holders of the Outstanding
Trust Preferred Securities. In no event shall the Issuer Trustees be liable to
the Issuer Trust or the Holders for any failure to comply with this section
that results from a change in law or regulation or in the interpretation
thereof.
SECTION 2.8. Assets of Trust.
The assets of the Issuer Trust shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered
by the Property Trustee in trust for the benefit of the Issuer Trust and the
Holders in accordance with this Trust Agreement.
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ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents shall have
exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All moneys and
other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account
for the exclusive benefit of the Holders and for distribution as herein
provided, including (and subject to) any priority of payments provided
for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held in
the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
ARTICLE IV
REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including of Additional Amounts)
will be made on the Trust Securities at the rate and on the dates that
payments of interest (including of Additional Interest, as defined in the
Indenture) are made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of
the Issuer Trust available for the payment of Distributions.
Distributions shall accumulate from October 28, 1997, and, except
in the event (and to the extent) that the Depositor exercises its
right to defer the payment of interest on the Debentures pursuant
to the Indenture, shall be payable quarterly in arrears on March
31, June 30, September 30 and December 31 of each year, commencing
on December 31, 1997. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business Day,
then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, the
payment of such Distribution shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on the date on which such payment was
originally payable (each date on which distributions are
payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) The Trust Securities shall be entitled to
Distributions payable at a rate of 7.55% per annum of the
Liquidation Amount of the Trust Securities. The amount of
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Distributions payable for any period less than a full Distribution
period shall be computed on the basis of a 360-day year of twelve
30-day months and the actual number of days elapsed in a partial
month in a period. Distributions payable for each full
Distribution period will be computed by dividing the rate per
annum by four. The amount of Distributions payable for any period
shall include any Additional Amounts in respect of such period.
(iii) Distributions on the Trust Securities shall be made
by the Property Trustee from the Payment Account and shall be payable
on each Distribution Date only to the extent that the Issuer Trust
has funds then on hand and available in the Payment Account for the
payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear
on the Securities Register for the Trust Securities at the close of business
on the relevant record date, which shall be at the close of business on the
fifteenth day (whether or not a Business Day) next preceding the relevant
Distribution Date.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of
the Debentures, the Issuer Trust will be required to redeem a Like
Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first class mail, postage prepaid, mailed not less than 30 nor more than
60 days prior to the Redemption Date to each Holder of Trust Securities
to be redeemed, at such Holder's address appearing in the Security Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price
cannot be calculated prior to the time the notice is required
to be sent, an estimate of the Redemption Price together with
a statement that it is an estimate and that the actual Redemption
Price will be calculated on the third Business Day prior to the
Redemption Date (and if an estimate is provided, a further notice
shall be sent of the actual Redemption Price on the date that such
Redemption Price is calculated);
(iii) the CUSIP number or CUSIP numbers of the Trust
Preferred Securities affected (if applicable);
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the aggregate
Liquidation Amount of the particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accumulate on and after
said date, except as provided in Section 4.2(d) below; and
(vi) the place or places where the Trust Securities are
to be surrendered for the payment of the Redemption Price.
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The Issuer Trust in issuing the Trust Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Property Trustee shall indicate
the "CUSIP" numbers of the Trust Securities in notices of redemption and
related materials as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such
numbers either as printed on the Trust Securities or as contained in any
notice of redemption and related materials.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made
and the Redemption Price shall be payable on each Redemption Date only to
the extent that the Issuer Trust has funds then on hand and available in the
Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Trust Preferred Securities, then, by 12:00 noon, New York City time,
on the Redemption Date, subject to Section 4.2(c), the Property Trustee will,
with respect to Book-Entry Trust Preferred Securities, irrevocably
deposit with the Clearing Agency for such Book-Entry Trust Preferred
Securities, to the extent available therefor, funds sufficient to pay the
applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Trust Preferred Securities. With respect to Trust Preferred Securities that
are not Book-Entry Trust Preferred Securities, the Property Trustee, subject
to Section 4.2(c), will irrevocably deposit with the Paying Agent, to the
extent available therefor, funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent irrevocable instructions and authority
to pay the Redemption Price to the Holders of the Trust Preferred Securities
upon surrender of their Trust Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the
Securities Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption shall have been
given and funds deposited as required, then upon the date of such deposit,
all rights of Holders holding Trust Securities so called for redemption will
cease, except the right of such Holders to receive the Redemption Price and
any Distribution payable in respect of the Trust Securities on or prior to the
Redemption Date, but without interest, and such Securities will cease to be
outstanding. In the event that any date on which any Redemption Price
is payable is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day that is a
Business Day (without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date. In the
event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and
not paid either by the Issuer Trust or by the Depositor pursuant to the
Guarantee Agreement, Distributions on such Trust Securities will continue to
accumulate, as set forth in Section 4.1, from the Redemption Date originally
established by the Issuer Trust for such Trust Securities to the date such
Redemption Price is actually paid, in which case the actual payment date
will be the date fixed for redemption for purposes of calculating the
Redemption Price.
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(e) Subject to the priority provisions of Section 4.3(a), if less
than all the Outstanding Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of Trust Securities to be
redeemed shall be allocated pro rata to the Common Securities and the Trust
Preferred Securities based upon the relative Liquidation Amounts of such
classes. The particular Trust Preferred Securities to be redeemed shall be
selected on a pro rata basis based upon their respective Liquidation Amounts
not more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Trust Preferred Securities not previously
called for redemption, provided that so long as the Trust Preferred Securities
are in book-entry-only form, such selection shall be made in accordance with
the customary procedures for the Clearing Agency for the Trust Preferred
Securities. The Property Trustee shall promptly notify the Securities
Registrar in writing of the Trust Preferred Securities selected for redemption
and, in the case of any Trust Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes
of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Trust Preferred Securities shall
relate, in the case of any Trust Preferred Securities redeemed or to be
redeemed only in part, to the portion of the aggregate Liquidation Amount
of Trust Preferred Securities that has been or is to be redeemed.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Amounts) on,
the Redemption Price of, and the Liquidation Distribution in respect
of the Trust Securities, as applicable, shall be made, subject to the
allocation provisions of Section 4.2(e), pro rata among the Common Securities
and the Trust Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date,
Redemption Date or Liquidation Date any Event of Default resulting from a
Debenture Event of Default specified in Section 5.1(a) or 5.1(b) of the
Indenture shall have occurred and be continuing, no payment of any
Distribution (including any Additional Amounts) on, Redemption Price of, or
Liquidation Distribution in respect of any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition
of Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including any Additional Amounts)
on all Outstanding Trust Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Trust
Preferred Securities then called for redemption, or in the case of payment
of the Liquidation Distribution the full amount of such Liquidation
Distribution on all Outstanding Trust Preferred Securities, shall have been
made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Amounts) on, or the Redemption
Price of, the Trust Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holders of the Common
Securities shall have no right to act with respect to any such Event of
Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Trust Preferred Securities have been cured,
waived or otherwise eliminated. Until all such Events
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of Default under this Trust Agreement with respect to the Trust Preferred
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Trust Preferred
Securities and not on behalf of the Holders of the Common Securities, and
only the Holders of the Trust Preferred Securities will have the right to
direct the Property Trustee to act on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) in respect
of the Trust Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on
the Securities Register or, if the Trust Preferred Securities are held by a
Clearing Agency, such Distributions shall be made to the Clearing Agency in
immediately available funds. Payments in respect of the Common Securities
shall be made in such manner as shall be mutually agreed between the Property
Trustee and the Holders of the Common Securities.
SECTION 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file all United States federal, state and local
tax and information returns and reports required to be filed by or in respect
of the Issuer Trust. In this regard, the Administrative Trustees shall (i)
prepare and file (or cause to be prepared and filed) all Internal Revenue
Service forms required to be filed in respect of the Issuer Trust in each
taxable year of the Issuer Trust and (ii) prepare and furnish (or cause to
be prepared and furnished) to each Holder all Internal Revenue Service
forms required to be provided by the Issuer Trust. The Administrative
Trustees shall provide the Depositor and the Property Trustee with a copy
of all such returns and reports promptly after such filing or furnishing.
The Issuer Trustees shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with
respect to any payments to Holders under the Trust Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Debentures of Additional Sums, the Property Trustee
shall promptly pay any taxes, duties or governmental charges ofwhatsoever nature
(other than withholding taxes) imposed on the Issuer Trust by the United States
or any other taxing authority, which were included in such Additional Sums.
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Trust Preferred Securities
with respect thereto shall be reduced by the amount of any corresponding
payment such Holder (or any Owner) has directly received pursuant to Section
5.8 of the Indenture or Section 5.13 of this Trust Agreement.
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ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the creation of the Issuer Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Issuer Trust.
SECTION 5.2. The Trust Securities Certificates.
(a) The Trust Preferred Securities Certificates shall be issued in
minimum denominations of $25 Liquidation Amount and integral multiples of
$25 in excess thereof and the Common Securities Certificates shall be issued
in denominations of $25 Liquidation Amount and integral multiples
thereof. The Trust Securities Certificates shall be executed on behalf
of the Issuer Trust by manual signature of at least one Administrative Trustee.
Trust Securities Certificates bearing the manual signatures of individuals who
were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Issuer Trust, shall be validly issued
and entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to
the delivery of such Trust Securities Certificates or did not hold such offices
at the date of delivery of such Trust Securities Certificates. A transferee of
a Trust Securities Certificate shall become a Holder and shall be entitled
to the rights and subject to the obligations of a Holder hereunder upon due
registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.5.
(b) Upon their original issuance, Trust Preferred Securities
Certificates shall be issued in the form of one or more Book-Entry Trust
Preferred Securities Certificates registered in the name of DTC, as Clearing
Agency, or its nominee and deposited with DTC or a custodian for DTC for credit
by DTC to the respective accounts of the Owners thereof (or such other
accounts as they may direct).
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
SECTION 5.3. Execution and Delivery of Trust Securities
Certificates.
On the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Issuer Trust and
delivered to or upon the written order of the Depositor, executed by one
authorized officer thereof, without further corporate action by the
Depositor, in authorized denominations.
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SECTION 5.4. Book-Entry Trust Preferred Securities.
(a) Each Book-Entry Trust Preferred Securities Certificate issued
under this Trust Agreement shall be registered in the name of the Clearing
Agency or a nominee thereof and delivered to such Clearing Agency or a
nominee thereof or custodian therefor and each such Book-Entry Trust
Preferred Securities Certificate shall constitute a single Trust
Preferred Securities Certificate for all purposes of this Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, no
Book-Entry Trust Preferred Securities Certificate may be exchanged in
whole or in part for Trust Preferred Securities Certificates registered,
and no transfer of a Book-Entry Trust Preferred Securities Certificate in
whole or in part may be registered, in the name of any Person other than
the Clearing Agency for such Book-Entry Trust Preferred Securities Certificates
or a nominee thereof unless (i) the Clearing Agency advises the Issuer Trust in
writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Book-Entry Trust Preferred
Securities Certificates, and is unable to locate a qualified
successor or a qualified successor shall not have been appointed, or the
Clearing Agency ceases to be a clearing agency registered under the Exchange
Act at a time when it is required to be so registered to act as such clearing
agent, (ii) the Issuer Trust at its option determines that a Book Entry
Trust Preferred Securities Certificate shall be so exchangeable or (iii) a
Debenture Event of Default has occurred and is continuing. Upon the
occurrence of any event specified in clause (i), (ii) or (iii) above, the
Property Trustee shall notify the Clearing Agency and instruct the Clearing
Agency to notify all Owners of Book-Entry Trust Preferred Securities, the
Delaware Trustee and the Administrative Trustees of the occurrence of
such event and of the availability of the Definitive Trust Preferred
Securities Certificates to Owners of such class or classes, as applicable,
requesting the same.
(c) If any Book-Entry Trust Preferred Securities Certificate is to be
exchanged for other Trust Preferred Securities Certificates or cancelled
in part, or if any other Trust Preferred Securities Certificate is to be
exchanged in whole or in part for Book-Entry Trust Preferred Securities
represented by a Book-Entry Trust Preferred Securities Certificate, then
either (i) such Book-Entry Trust Preferred Securities Certificate shall be
so surrendered for exchange or cancellation as provided in this Article V or
(ii) the aggregate Liquidation Amount represented by such Book-Entry
Trust Preferred Securities Certificate shall be reduced, subject to Section
5.2, or increased by an amount equal to the Liquidation Amount represented
by that portion of the Book-Entry Trust Preferred Securities Certificate to
be so exchanged or cancelled, or equal to the Liquidation Amount
represented by such other Trust Preferred Securities Certificates to be so
exchanged for Book-Entry Trust Preferred Securities represented thereby,
as the case may be, by means of an appropriate adjustment made on the records of
the Securities Registrar, whereupon the Property Trustee, in
accordance with the Applicable Procedures, shall instruct the Clearing Agency or
its authorized representative to make a corresponding adjustment
to its records. Upon surrender to the Administrative Trustees or the
Securities Registrar of the Book-Entry Trust Preferred Securities Certificate
or Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative
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Trustees, or any one of them, shall execute the Definitive Trust Preferred
Securities Certificates in accordance with the instructions of the Clearing
Agency. None of the Securities Registrar, the Issuer Trustees or the
Administrative Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive Trust Preferred
Securities Certificates, the Issuer Trustees shall recognize the Holders of
the Definitive Trust Preferred Securities Certificates as Holders. The
Definitive Trust Preferred Securities Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the execution thereof
by the Administrative Trustees or any one of them.
(d) Every Trust Preferred Securities Certificate executed and
delivered upon registration of transfer of, or in exchange for or in lieu
of, a Book-Entry Trust Preferred Securities Certificate or any portion
thereof, whether pursuant to this Article V or Article IV or otherwise,
shall be executed and delivered in the form of, and shall be, a Book-Entry
Trust Preferred Securities Certificate, unless such Trust Preferred
Securities Certificate is registered in the name of a Person other than the
Clearing Agency for such Book-Entry Trust Preferred Securities Certificate
or a nominee thereof.
(e) The Clearing Agency or its nominee, as registered owner of a Book-
Entry Trust Preferred Securities Certificate, shall be the Holder of
such Book-Entry Trust Preferred Securities Certificate for all purposes
under this Agreement and the Book-Entry Trust Preferred Securities
Certificate and Owners with respect to a Book-Entry Trust Preferred
Securities Certificate shall hold such interests pursuant to the Applicable
Procedures. The Securities Registrar and the Issuer Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this Trust
Agreement relating to the Book-Entry Trust Preferred Securities Certificates
(including the payment of the Liquidation Amount of and Distributions
on the Book-Entry Trust Preferred Securities represented thereby and the
giving of instructions or directions by Owners of Book-Entry Trust
Preferred Securities represented thereby) as the sole Holder of the Book-
Entry Trust Preferred Securities represented thereby and shall have no
obligations to the Owners thereof. None of the Issuer Trustees nor the
Securities Registrar shall have any liability in respect of any transfers
effected by the Clearing Agency.
The rights of the Owners of the Book-Entry Trust Preferred Securities
shall be exercised only through the Clearing Agency and shall be limited
to those established by law, the Applicable Procedures and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Letter of Representations, unless and until
Definitive Trust Preferred Securities Certificates are issued pursuant to
Section 5.4(b), the initial Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit payments
on the Trust Preferred Securities to such Clearing Agency Participants and
none of the Depositor or the Issuer Trustees shall have any responsibility
or obligation with respect thereto.
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SECTION 5.5. Registration of Transfer and Exchange of Trust
Preferred Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 5.9, a register or registers for
the purpose of registering Trust Securities Certificates and transfers and
exchanges of Trust Securities Certificates (the "Securities Register") in which
the registrar and transfer agent with respect to the Trust Securities (the
"Securities Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Trust Preferred Securities
Certificates and Common Securities Certificates (subject to Section 5.11 in
the case of the Common Securities Certificates) and registration of transfers
and exchanges of Trust Preferred Securities Certificates as herein
provided. The Person acting as the Property Trustee shall at all times
also be the Securities Registrar.
Upon surrender for registration of transfer of any Trust Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.9, the Administrative Trustees or any one of them shall execute and deliver
to the Property Trustee, and the Property Trustee shall deliver, in the
name of the designated transferee or transferees, one or more new Trust
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such
Administrative Trustee or Trustees.
The Securities Registrar shall not be required (i) to issue, register
the transfer of or exchange any Trust Preferred Security during a period
beginning at the opening of business 15 days before the day of selection
for redemption of such Trust Preferred Securities pursuant to Article IV
and ending at the close of business on the day of mailing of the notice of
redemption or (ii) to register the transfer of or exchange any Trust Preferred
Security so selected for redemption in whole or in part, except, in the case
of any such Trust Preferred Security to be redeemed in part, any portion
thereof not to be redeemed.
Every Trust Preferred Securities Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and
the Securities Registrar duly executed by the Holder or its attorney duly
authorized in writing. Each Trust Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be cancelled and
subsequently disposed of by the Property Trustee in accordance with its
customary practice.
No service charge shall be made for any registration of transfer or
exchange of Trust Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer
or exchange of Trust Preferred Securities Certificates.
(b) Notwithstanding any other provision of this Agreement,
transfers and exchanges of Trust Preferred Securities Certificates and
beneficial interests in a Book-Entry Trust Preferred Securities Certificate
of the kinds specified in this Section 5.5(b) shall be made only in
accordance with this Section 5.5(b).
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(i) Non-Book-Entry Trust Preferred Securities Certificate to
Book-Entry Trust Preferred Securities Certificate. If the Holder of a
Trust Preferred Securities Certificate (other than a Book-Entry
Trust Preferred Securities Certificate) wishes at any time to
transfer all or any portion of such Trust Preferred Securities
Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in a Book-Entry Trust Preferred
Securities Certificate, such transfer may be effected only in
accordance with the provisions of this Clause (b)(i) and subject
to the Applicable Procedures. Upon receipt by the Securities
Registrar of such Trust Preferred Securities Certificate as
provided in Section 5.5(a) and instructions satisfactory to
the Securities Registrar directing that a beneficial interest
in the Book-Entry Trust Preferred Securities Certificate of a
specified number of Trust Preferred Securities not greater than
the number of Trust Preferred Securities represented by such Trust
Preferred Securities Certificate be credited to a specified
Clearing Agency Participant's account, then the Securities
Registrar shall cancel such Trust Preferred Securities
Certificate (and issue a new Trust Preferred Securities
Certificate in respect of any untransferred portion thereof)
as provided in Section 5.5(a) and increase the aggregate
Liquidation Amount of the Book-Entry Trust Preferred Securities
Certificate by the Liquidation Amount represented by such Trust
Preferred Securities so transferred as provided in Section 5.4(c).
(ii) Non-Book-Entry Trust Preferred Securities
Certificate to Non-Book-Entry Trust Preferred Securities
Certificate. A Trust Preferred Securities Certificate that
is not a Book-Entry Trust Preferred Securities Certificate may
be transferred, in whole or in part, to a Person who takes
delivery in the form of another Trust Preferred Securities
Certificate that is not a Book-Entry Trust Preferred Securities
Certificate as provided in Section 5.5(a).
(iii) Exchanges between Book-Entry Trust Preferred
Securities Certificate and Non-Book-Entry Trust Preferred
Securities Certificate. A beneficial interest in a Book-Entry
Trust Preferred Securities Certificate may be exchanged for a
Trust Preferred Securities Certificate that is not a Book-Entry
Trust Preferred Securities Certificate as provided in Section 5.4.
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (i) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (ii) there shall be delivered to the Securities Registrar and
the Administrative Trustees such security or indemnity as may be required by
them to save each of them harmless, then in the absence of notice that
such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of
the Issuer Trust shall execute and make available for delivery, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Securities Certificate, a new Trust Securities
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Certificate of like class, tenor and denomination. In connection with the
issuance of any new Trust Securities Certificate under this Section 5.6,
the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Trust
Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of
the Issuer Trust corresponding to that evidenced by the lost, stolen or
destroyed Trust Securities Certificate, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate shall be
found at any time.
SECTION 5.7. Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall each treat the
Person in whose name any Trust Securities Certificate shall be registered
in the Securities Register as the owner of such Trust Securities Certificate
for the purpose of receiving Distributions and for all other purposes
whatsoever, and none of the Issuer Trustees and the Securities Registrar
shall be bound by any notice to the contrary.
SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee, the Delaware Trustee or
the Administrative Trustees accountable by reason of the disclosure
of its name and address, regardless of the source from which such
information was derived.
SECTION 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrative Trustees, which consent shall not be unreasonably withheld,
an office or offices or agency or agencies where Trust Preferred Securities
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Issuer Trustees
in respect of the Trust Securities Certificates may be served. The
Administrative Trustees initially designate South Carolina Electric
& Gas Company, 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Treasurer, as its office and agency for such purposes.
The Property Trustee shall give prompt written notice to the Depositor, the
Administrative Trustees and to the Holders of any change in the location of
the Securities Register or any such office or agency.
SECTION 5.10. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to
the Property Trustee and the Administrative Trustees. Any Paying Agent
shall have the revocable power to withdraw funds from the Payment
Account solely for the purpose of making the Distributions referred
to above. The Administrative Trustees may revoke such power and remove
the Paying Agent in their sole discretion. The Paying Agent shall
initially be the Bank. Any Person acting as Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Administrative
Trustees and the Property Trustee. If the Bank shall no longer be
the Paying Agent or a successor Paying Agent shall resign or its authority
to act be revoked, the Administrative Trustees shall appoint a successor
(which shall be a bank or trust company) to act as Paying Agent.
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Such successor Paying Agent or any additional Paying Agent appointed by the
Administrative Trustees shall execute and deliver to the Issuer
Trustees an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Issuer Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Holders in trust for the
benefit of the Holders entitled thereto until such sums shall be paid to
such Holders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Property Trustee.
The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the
Bank also in its role as Paying Agent, for so long as the Bank shall act as
Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
SECTION 5.11. Ownership of Common Securities by Depositor.
On the Closing Date, the Depositor shall acquire, and thereafter shall
retain, beneficial and record ownership of the Common Securities.
The Depositor may not transfer the Common Securities except (i) in
connection with a consolidation or merger of the Depositor into another
Person or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person pursuant to
Section 8.1 of the Indenture or (ii) to the Depositor or an Affiliate thereof
in compliance with applicable law (including the Securities Act, and
applicable state securities and blue sky laws). To the fullest extent
permitted by law, any attempted transfer of the Common Securities other
than as set forth in the next proceeding sentence shall be void. The
Administrative Trustees shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating substantially "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE
OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE
TRUST AGREEMENT."
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Trust Preferred
Securities are represented by a Book-Entry Trust Preferred Securities
Certificate, the Issuer Trustees shall give all such notices and
communications specified herein to be given to the Clearing Agency
and shall have no obligations to the Owners.
SECTION 5.13. Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with Section
2.9 and the Holders shall not have any right or title therein other than
the undivided beneficial interest in the assets of the Issuer Trust conferred
by their Trust Securities and they shall have no right to call for any
partition or division of property, profits or rights of the Issuer Trust except
as described below. The Trust Securities shall be personal property giving only
the rights specifically set forth therein and in this Trust Agreement. The
Trust Securities shall have no preemptive or similar rights and when issued
and delivered to Holders against payment of the purchase price
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therefor will be fully paid and nonassessable by the Issuer Trust. The
Holders of the Trust Securities, in their capacities as such, shall be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware.
(b) For so long as any Trust Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee
fails or the holders of not less than 25% in principal amount of the
outstanding Debentures fail to declare the principal of all of the Debentures
to be immediately due and payable, the Holders of at least 25% in Liquidation
Amount of the Trust Preferred Securities then Outstanding shall
have the right to make such declaration by a notice in writing to the
Property Trustee, the Depositor and the Debenture Trustee.
At any time after a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment
of the money due has been obtained by the Debenture Trustee as in the
Indenture provided, if the Property Trustee fails to annul any such
declaration and waive such default, the Holders of at least a Majority
in Liquidation Amount of the Trust Preferred Securities, by written notice
to the Property Trustee, the Depositor and the Debenture Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all of the Debentures,
(B) any accrued Additional Interest on all of the Debentures,
(C) the principal of (and premium, if any, on) any Debentures
that have become due otherwise than by such
declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Debentures, and
(D) all sums paid or advanced by the Debenture Trustee under
the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture
Trustee and the Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the
Debentures, other than the non-payment of the principal of the
Debentures that has become due solely by such acceleration, have
been cured or waived as provided in Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Trust
Preferred Securities may, on behalf of the Holders of all the Trust
Preferred Securities, waive any past default under the Indenture, except
a default in the payment of principal or interest (unless such default
has been cured and a sum sufficient to pay all matured installments of
interest and principal due otherwise than by acceleration has been
deposited with the Debenture Trustee) or a
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default in respect of a covenant or provision that under the Indenture
cannot be modified or amended without the consent of the holder of each
outstanding Debenture. No such rescission shall affect any subsequent
default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of
any part of the Trust Preferred Securities a record date shall be
established for determining Holders of Outstanding Trust Preferred
Securities entitled to join in such notice, which record date shall be
at the close of business on the day the Property Trustee receives such
notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or
not such Holders remain Holders after such record date; provided, that,
unless such declaration of acceleration, or rescission and annulment, as the
case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day that is 90 days after
such record date, such notice of declaration of acceleration, or rescission and
annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing
in this paragraph shall prevent a Holder or a proxy of a Holder from
giving, after expiration of such 90-day period, a new written notice of
declaration of acceleration, or rescission and annulment thereof, as the
case may be, that is identical to a written notice that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new
record date shall be established pursuant to the provisions of this Section
5.13(b).
(c) For so long as any Trust Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms of
this Trust Agreement and the Indenture, upon a Debenture Event of Default
specified in Section 5.1(a) or 5.1(b) of the Indenture, any Holder
of Trust Preferred Securities shall have the right to institute a
proceeding directly against the Depositor, pursuant to Section 5.8 of the
Indenture, for enforcement of payment to such Holder of any amounts payable
in respect of Debentures having an aggregate principal amount equal to
the aggregate Liquidation Amount of the Trust Preferred Securities of such
Holder (a "Direct Action"). Except as set forth in Section 5.13(b)
and this Section 5.13(c), the Holders of Trust Preferred Securities
shall have no right to exercise directly any right or remedy available to the
holders of, or in respect of, the Debentures.
(d) Except as otherwise provided in clauses (a), (b) and (c) of
this Section 5.13, the Holders of at least a Majority in Liquidation Amount
of the Trust Preferred Securities may, on behalf of the Holders of all the
Trust Preferred Securities, waive any past default or Event of Default
and its consequences. Upon such waiver, any such default or Event of Default
shall cease to exist and any default or Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Trust Agreement, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
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ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in
the Indenture and as otherwise required by law, no Holder of Trust
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Issuer
Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Trust Securities Certificates,
be construed so as to constitute the Holders from time to time as partners
or members of an association.
(b) So long as any Debentures are held by the Property Trustee on
behalf of the Issuer Trust, the Property Trustee shall not (i) direct
the time, method and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or execute any trust or power
conferred on the Property Trustee with respect to the Debentures, (ii)
waive any past default that may be waived under Section 5.13 of the
Indenture, (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable or (iv)
consent to any amendment, modification or termination of the Indenture or
the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a
Majority in Liquidation Amount of the Trust Preferred Securities; provided,
however, that where a consent under the Indenture would require the consent
of each Holder of Debentures affected thereby, no such consent
shall be given by the Property Trustee without the prior written consent of
each Holder of Trust Preferred Securities. The Property Trustee
shall not revoke any action previously authorized or approved by a
vote of the Holders of the Trust Preferred Securities, except by a subsequent
vote of the Holders of the Trust Preferred Securities. The Property Trustee
shall notify all Holders of the Trust Preferred Securities of any
notice of default received with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Trust Preferred
Securities, prior to taking any of the foregoing actions, the Property
Trustee shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that such action shall not cause
the Issuer Trust to be taxable as a corporation or classified as other
than a grantor trust for United States federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for,
or the Issuer Trustees otherwise propose to effect, (i) any action
that would adversely affect in any material respect the powers, preferences
or special rights of the Trust Preferred Securities, whether by way
of amendment to this Trust Agreement or otherwise or (ii) the dissolution,
winding-up or termination of the Issuer Trust, other than pursuant
to the terms of this Trust Agreement, then the Holders of Outstanding
Trust Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority
in Liquidation Amount of the Trust Preferred Securities. Notwithstanding
any other provision of this Trust Agreement, no amendment to this
Trust Agreement may be made if,
245
as a result of such amendment, it would cause the Issuer Trust to be taxable
as a corporation or classified as other than a grantor trust for
United States federal income tax purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Holders of the Trust Preferred Securities,
stating the time, place and purpose of the meeting, shall be given
by the Property Trustee pursuant to Section 10.8 to each Holder of Trust
Preferred Securities, at such Holder's registered address, at least 15
days and not more than 90 days before the meeting. At any such meeting,
any business properly before the meeting may be so considered
whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
SECTION 6.3. Meetings of Holders of the Trust Preferred Securities.
No annual meeting of Holders is required to be held. The Administrative
Trustees, however, shall call a meeting of the Holders of the Trust
Preferred Securities to vote on any matter upon the written request of the
Holders of at least 25% in aggregate Liquidation Amount of the
Outstanding Trust Preferred Securities and the Administrative Trustees
or the Property Trustee may, at any time in their discretion, call a
meeting of the Holders of the Trust Preferred Securities to vote on
any matters as to which such Holders are entitled to vote.
The Holders of at least a Majority in Liquidation Amount of the Trust
Preferred Securities, present in person or by proxy, shall constitute
a quorum at any meeting of the Holders of the Trust Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
present, in person or by proxy, holding Trust Preferred Securities
representing at least a Majority in aggregate Liquidation Amount of the
Trust Preferred Securities held by the Holders present, either in person
or by proxy, at such meeting shall constitute the action of the Holders of
the Trust Preferred Securities, unless this Trust Agreement requires
a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Holders shall be entitled to one vote for each $25 of Liquidation Amount
represented by their Outstanding Trust Securities in respect of
any matter as to which such Holders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote
by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees,
or with such other officer or agent of the Issuer Trust as the
Administrative Trustees may direct, for verification prior to the time at
which such vote shall be taken. Pursuant to a resolution of the Property
Trustee, proxies may be solicited in the name of the Property Trustee or
one or more officers of the Property Trustee. Only Holders of record
shall be
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entitled to vote. When Trust Securities are held jointly by several persons,
any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy and such joint owners or
their proxies so present disagree as to any vote to be cast, such vote
shall not be received in respect of such Trust Securities. A proxy purporting
to be executed by or on behalf of a Holder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
SECTION 6.6. Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken
without a meeting if Holders holding at least a Majority in Liquidation
Amount of all Trust Preferred Securities entitled to vote in respect of
such action (or such larger proportion thereof as shall be required by
any other provision of this Trust Agreement) shall consent to the action
in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice
of and to vote at any meeting or by written consent, or to participate
in any distribution on the Trust Securities in respect of which a record
date is not otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees or Property
Trustee may from time to time fix a date, not more than 90 days prior
to the date of any meeting of Holders or the payment of a distribution
or other action, as the case may be, as a record date for the determination
of the identity of the Holders of record for such purposes.
SECTION 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be
given, made or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and, except
as otherwise expressly provided herein, such action shall become effective
when such instrument or instruments are delivered to an Administrative
Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act"
of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Trust Agreement and
(subject to Section 8.1) conclusive in favor of the Issuer Trustees,
if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other
than his individual capacity, such certificate or
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affidavit shall also constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved
in any other manner that any Issuer Trustee receiving the same deems
sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Trust Security shall bind every future
Holder of the same Trust Security and the Holder of every Trust Security
issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be
done by the Issuer Trustees or the Issuer Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may
do so with regard to all or any part of the Liquidation Amount of such
Trust Security or by one or more duly appointed agents each of which
may do so pursuant to such appointment with regard to all or any part
of such Liquidation Amount.
If any dispute shall arise among the Holders or the Issuer Trustees
with respect to the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of such Holder
or Issuer Trustee under this Article VI, then the determination
of such matter by the Property Trustee shall be conclusive with respect to
such matter.
SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Issuer Trust shall be open to inspection
by Holders during normal business hours for any purpose reasonably related
to such Holder's interest as a Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit
of the Depositor and the Holders that:
(a) the Property Trustee is a corporation, duly organized, validly
existing and in good standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
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(c) the Delaware Trustee is a Delaware banking corporation;
(d) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of each of the
Property Trustee and the Delaware Trustee enforceable against each of them
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(f) the execution, delivery and performance of this Trust Agreement
has been duly authorized by all necessary corporate or other action
on the part of the Property Trustee and the Delaware Trustee and does not
require any approval of stockholders of the Property Trustee or
the Delaware Trustee and such execution, delivery and performance will not
(i) violate the Charter or By-laws of the Property Trustee or the
Delaware Trustee, (ii) violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in the creation
or imposition of, any Lien on any properties included in the Trust Property
pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee is a party or by which it is bound
or (iii) violate any law, governmental rule or regulation of the United
States or the State of Delaware, as the case may be, governing the banking,
trust or general powers of the Property Trustee or the Delaware Trustee (as
appropriate in context) or any order, judgment or decree applicable
to the Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee or the
Delaware Trustee (as appropriate in context) contemplated herein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing law of the United
States or the State of Delaware governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee, as the case may be; and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened
against or affecting the Property Trustee or the Delaware Trustee in any
court or before any governmental authority, agency or arbitration board
or tribunal that, individually or in the aggregate, would materially and
adversely affect the Issuer Trust or would question the right, power and
authority of the Property Trustee or the Delaware Trustee, as the case may
be, to enter into or perform its obligations as one of the Issuer
Trustees under this Trust Agreement.
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SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the Holders
that:
(a) the Trust Securities Certificates issued on behalf of the Issuer
Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the Issuer Trustees pursuant to the terms
and provisions of, and in accordance with the requirements of, this
Trust Agreement and the Holders will be, as of each such date, entitled to
the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable
by the Issuer Trust (or the Issuer Trustees on behalf of the Issuer
Trust) under the laws of the State of Delaware or any political subdivision
thereof in connection with the execution, delivery and performance
by the Property Trustee or the Delaware Trustee, as the case may be, of
this Trust Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees shall be
as provided by this Trust Agreement and, in the case of the Property
Trustee, by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require any of the Issuer
Trustees to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether
or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or
affording protection to the Issuer Trustees shall be subject to the
provisions of this Section 8.1. Nothing in this Trust Agreement shall
be construed to release an Administrative Trustee from liability for his
or her own grossly negligent action, his or her own negligent failure to
act, or his or her own willful misconduct. To the extent that, at law or
in equity, an Issuer Trustee has duties and liabilities relating to the
Issuer Trust or to the Holders, such Issuer Trustee shall not be liable
to the Issuer Trust or to any Holder for such Issuer Trustee's good faith
reliance on the provisions of this Trust Agreement. The provisions of this
Trust Agreement, to the extent that they restrict the duties and liabilities
of the Issuer Trustees otherwise existing at law or in equity, are agreed by
the Depositor and the Holders to replace such other duties and liabilities of
the Issuer Trustees.
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(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue
and proceeds from the Trust Property and only to the extent that there shall
be sufficient revenue or proceeds from the Trust Property to enable
the Property Trustee or a Paying Agent to make payments in accordance with
the terms hereof. Each Holder, by its acceptance of a Trust
Security, agrees that it will look solely to the revenue and proceeds from
the Trust Property to the extent legally available for distribution to
it as herein provided and that the Issuer Trustees are not personally liable
to it for any amount distributable in respect of any Trust Security
or for any other liability in respect of any Trust Security. This Section
8.1(b) does not limit the liability of the Issuer Trustees expressly set
forth elsewhere in this Trust Agreement or, in the case of the Property
Trustee, in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically
set forth in this Trust Agreement (including pursuant to Section 10.10),
and no implied covenants shall be read into this Trust Agreement against
the Property Trustee. If an Event of Default has occurred (that has
not been cured or waived pursuant to Section 5.13, the Property Trustee
shall exercise such of the rights and powers vested in it by this Trust
Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(d) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee or the Delaware Trustee from liability for
its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express
provisions of this Trust Agreement (including pursuant
to Section 10.10), and the Property Trustee shall not
be liable except for the performance of such duties and
obligations as are specifically set forth in this Trust
Agreement (including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust
Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished
to the Property Trustee, the Property Trustee shall be
under a duty to examine the same to determine whether
or not they conform to the requirements of this Trust
Agreement.
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(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a
Majority in Liquidation Amount of the Trust Preferred Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust Agreement
and the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise
agree with the Depositor; and money held by the Property Trustee
need not be segregated from other funds held by it except in
relation to the Payment Account maintained by the Property
Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement,
nor shall the Property Trustee be liable for the default or
misconduct of any other Issuer Trustee or the Depositor; and
(vii) No provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the Property
Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to
it under the terms of this Trust Agreement or adequate indemnity
against such risk or liability is not reasonably assured to it.
(e) The Administrative Trustees shall not be responsible for
monitoring the compliance by the other Issuer Trustees or the Depositor
with their respective duties under this Trust Agreement, nor shall either
Administrative Trustee be liable for the default or misconduct of any
other Administrative Trustee, the other Issuer Trustees or the Depositor.
SECTION 8.2. Certain Notices.
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Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice
of such Event of Default to the Holders, the Administrative Trustees
and the Depositor, unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Administrative Trustees shall
transmit, in the manner and to the extent provided in Section 10.8,
notice of such exercise to the Holders, unless such exercise shall have
been revoked.
The Property Trustee shall not be deemed to have knowledge of any Event of
Default unless the Property Trustee shall have received written
notice or a Responsible Officer of the Property Trustee charged with the
administration of this Trust Agreement shall have obtained actual
knowledge of such Event of Default.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of
action, (ii) in construing any of the provisions of this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (iii) the Property Trustee is unsure
of the application of any provision of this Trust Agreement, then, except
as to any matter as to which the Holders of the Trust Preferred Securities
are entitled to vote under the terms of this Trust Agreement, the
Property Trustee shall deliver a notice to the Depositor requesting the
Depositor's opinion as to the course of action to be taken and the
Property Trustee shall take such action, or refrain from taking such action,
as the Property Trustee shall be instructed in writing to take, or to
refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but shall
be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and
in the best interests of the Holders, in which event the Property Trustee
shall have no liability except for its own bad faith, negligence or willful
misconduct;
(c) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
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(d) any direction or act of an Administrative Trustee contemplated by
this Trust Agreement shall be sufficiently evidenced by a certificate
executed by such Administrative Trustee and setting forth such direction or act;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or re-registration thereof;
(f) the Property Trustee may consult with counsel of its selection
(which counsel may be counsel to the Depositor or any of its Affiliates,
and may include any of its employees) and the advice of such counsel shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice; the Property Trustee
shall have the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent
jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the
request or direction of any of the Holders pursuant to this Trust Agreement,
unless such Holders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or
direction; provided that, nothing contained in this Section 8.3(g) shall be
taken to relieve the Property Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Trust Agreement;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or
other paper or document, unless requested in writing to do so by one or
more Holders, but the Property Trustee may make such further inquiry
or investigation into such facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, provided that the Property Trustee shall
be responsible for its own negligence or misconduct with respect to
selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other action hereunder, the
Property Trustee (i) may request instructions from the Holders (which
instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to
direct the Property Trustee under the terms of the Trust Securities in
respect of such remedy, right or action), (ii) may refrain from enforcing
such remedy or right or taking such other action until such instructions
are received and (iii) shall be protected in acting in accordance with such
instructions; and
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(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on any Issuer Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed
on it, in any jurisdiction in which it shall be illegal or in which such Person
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty
or obligation. No permissive power or authority available to any Issuer
Trustee shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Issuer Trust and the Depositor,
and the Issuer Trustees do not assume any responsibility for their
correctness. The Issuer Trustees shall not be accountable for the use or
application by the Depositor of the proceeds of the Debentures.
The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless an officer of the Property
Trustee assigned to its Corporate Trust Administration department
shall have received written notice from the Depositor, any Holder or any
other Issuer Trustee that such funds are not legally available.
SECTION 8.5. May Hold Securities.
Any Issuer Trustee or any other agent of any Issuer Trustee or the Issuer
Trust, in its individual or any other capacity, may become the owner or
pledgee of Trust Securities and, subject to Sections 8.8 and 8.13 and
except as provided in the definition of the term "Outstanding"
in Article I, may otherwise deal with the Issuer Trust with the same
rights it would have if it were not an Issuer Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Issuer Trustees from time to time such compensation
as the parties shall agree from time to time for all services rendered by them
hereunder as may be agreed by the Depositor and the Issuer Trustees from time
to time (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
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(b) except as otherwise expressly provided herein, to reimburse the
Issuer Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Issuer Trustees in accordance with any
provision of this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of their agents and counsel), except any
such expense, disbursement or advance as may be attributable to their
negligence, bad faith or wilful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Issuer Trustee, (ii) any Affiliate of any Issuer
Trustee, (iii) any officer, director, shareholder, employee, representative
or agent of any Issuer Trustee and (iv) any employee or agent of the
Issuer Trust (referred to herein as an "Indemnified Person") from and
against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of
the creation, operation or termination of the Issuer Trust or any
act or omission performed or omitted by such Indemnified Person on behalf
of the Issuer Trust, except that no Indemnified Person shall be
entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of negligence, bad faith or
wilful misconduct with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement and the removal or resignation of any Issuer Trustee.
No Issuer Trustee may claim any Lien on any Trust Property as a result of
any amount due pursuant to this Section 8.6.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Issuer
Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person
that is a national or state chartered bank and eligible pursuant to Section
310 of the Trust Indenture Act to act as such and that has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the
purposes of this Section and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time the Property Trustee with
respect to the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article. At the
time of appointment, the Property Trustee must have securities rated in one
of the three highest rating categories by a nationally recognized statistical
rating organization.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of
age or a legal entity that shall act through one or more persons authorized
to bind that entity.
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(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural
person who is at least 21 years of age and a resident of the State of
Delaware, or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law and that shall act through one or more persons
authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee
shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Trust Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements
of the Trust Indenture Act or of any jurisdiction in which any part of
the Trust Property may at the time be located, the Depositor and the
Administrative Trustees, by agreed action of the majority of such Trustees,
shall have power to appoint, and upon the written request of the
Administrative Trustees, the Depositor shall for such purpose join with
the Administrative Trustees in the execution, delivery and performance
of all instruments and agreements necessary or proper to appoint, one or
more Persons approved by the Property Trustee either to act as co-
trustee, jointly with the Property Trustee, of all or any part of
such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this
Section. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of
age and a resident of the United States, or (ii) a legal entity with its
principal place of business in the United States that shall act through
one or more persons authorized to bind such entity. In case an Event of
Default under the Indenture shall have occurred and be continuing, the
Property Trustee alone shall have the power to make such appointment.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming
to such co-trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be executed,
acknowledged and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms,
namely:
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(a) The Trust Securities shall be executed by one or more
Administrative Trustees and delivered by the Property Trustee and all rights,
powers, duties and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Property Trustee specified hereunder shall
be exercised solely by the Property Trustee and not by such co-trustee
or separate trustee.
(b) The rights, powers, duties and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered
by such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and
such co-trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular act is
to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers,
duties and obligations shall be exercised and performed by such co-trustee
or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section and, in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written request of the
Property Trustee, the Depositor shall join with the Property Trustee
in the execution, delivery and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal.
A successor to any co-trustee or separate trustee so resigning or removed
may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any
other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed
to have been delivered to each such co-trustee and separate
trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant Trustee")
and no appointment of a successor Issuer Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Issuer Trustee in accordance with the applicable requirements of Section 8.11.
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Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Holders.
If the instrument of acceptance by the successor Trustee required by
Section 8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the Relevant
Trustee may petition, at the expense of the Trust, any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Issuer Trustee may be removed at any time by Act of the
Holders of Common Securities. If a Debenture Event of Default shall have
occurred and be continuing, the Property Trustee or the Delaware
Trustee, or both of them, may be removed at such time by Act of the
Holders of a majority in Liquidation Amount of the Trust Preferred
Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust). An Administrative Trustee may be removed
by the Holders of Common Securities at any time. In no event will the
Holders of the Trust Preferred Securities have a right to vote to appoint,
remove or replace the Administrative Trustees.
If any Issuer Trustee shall resign, be removed or become incapable of
acting as Issuer Trustee, or if a vacancy shall occur in the office of
any Issuer Trustee for any reason, at a time when no Debenture Event of
Default shall have occurred and be continuing, the Holders of
Common Securities, by Act of the Holders of Common Securities, shall
promptly appoint a successor Issuer Trustee or Issuer Trustees and the
retiring Issuer Trustee shall comply with the applicable requirements of
Section 8.11. If the Property Trustee or the Delaware Trustee shall
resign, be removed or become incapable of continuing to act as the Property
Trustee or the Delaware Trustee, as the case may be, at a time
when a Debenture Event of Default shall have occurred and be continuing,
the Holders of Trust Preferred Securities, by Act of the Holders
of a majority in Liquidation Amount of the Trust Preferred Securities
then Outstanding, shall promptly appoint a successor Relevant Trustee
or Trustees and such successor Trustee shall comply with the applicable
requirements of Section 8.11. If an Administrative Trustee shall resign,
be removed or become incapable of acting as Administrative Trustee, at a
time when a Debenture Event of Default shall have occurred and
be continuing, the Holders of Common Securities by Act of the Holders
of Common Securities shall promptly appoint a successor Administrative
Trustee or Administrative Trustees and such successor Administrative
Trustee or Trustees shall comply with the applicable requirements of
Section 8.11. If no successor Relevant Trustee shall have been so
appointed by the Holders of Common Securities or the Holders of Trust
Preferred Securities and accepted appointment in the manner required
by Section 8.11, any Holder who has been a Holder of Trust Securities
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of an Issuer Trustee and each appointment of a successor Issuer
Trustee to all Holders in the manner provided in Section 10.8 and shall
give notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office
if it is the Property Trustee.
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Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes, in the opinion of the
Depositor, incompetent or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled by (a) the unanimous act
of the remaining Administrative Trustees if there are at least two of
them or (b) otherwise by the Depositor (with the successor in each case
being a Person who satisfies the eligibility requirement for
Administrative Trustees or Delaware Trustee, as the case may be, set
forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee
with respect to the Trust Securities shall execute and deliver an amendment
hereto wherein each successor Relevant Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of
the retiring Relevant Trustee with respect to the Trust Securities and the
Issuer Trust and (b) shall add to or change any of the provisions of this
Trust Agreement as shall be necessary to provide for or facilitate the
administration of the Issuer Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees and upon the execution
and delivery of such amendment the resignation or removal of the retiring
Relevant Trustee shall become effective to the extent provided therein and
each such successor Relevant Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Relevant Trustee; but, on request of the Issuer
Trust or any successor Relevant Trustee such retiring Relevant Trustee shall
duly assign, transfer and deliver to such successor Relevant Trustee
all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and
the Issuer Trust.
Upon request of any such successor Relevant Trustee, the Issuer Trust
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Relevant Trustee all such
rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural Person may be merged
or converted or with which it may be consolidated, or any Person resulting
from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially
all the corporate trust business of such Relevant Trustee, shall be the
successor of such Relevant Trustee hereunder, provided that such Person
shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of
any of the parties hereto.
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SECTION 8.13. Preferential Collection of Claims Against Depositor or
Issuer Trust.
If and when the Property Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Depositor or the
Issuer Trust (or any other obligor upon the Trust Preferred Securities),
the Property Trustee shall be subject to the provisions of Section 311
of the Trust Indenture Act regarding the collection of claims against the
Depositor or the Issuer Trust (or any such other obligor).
SECTION 8.14. Property Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor
or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable and
irrespective of whether the Property Trustee shall have made any demand
on the Issuer Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law,
by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Property Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Property Trustee and, in the
event the Property Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Property Trustee any
amount due it for the reasonable compensation, expenses, disbursements
and advances of the Property Trustee, its agents and counsel, and any
other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or compensation
affecting the Trust Securities or the rights of any Holder thereof
or to authorize the Property Trustee to vote in respect of the claim of
any Holder in any such proceeding.
SECTION 8.15. Reports by Property Trustee.
(a) Not later than January 31 of each year, the Property Trustee shall
transmit to all Holders in accordance with Section 10.8 and to the
Depositor a brief report dated as of the immediately preceding December
31 with respect to:
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(i) its eligibility under Section 8.7 or, in lieu thereof,
if to the best of its knowledge it has continued to be eligible under
said Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied
with all of its obligations under this Trust Agreement during the
12-month period (or, in the case of the initial report, the period
since the Closing Date) ending with such December 31 or, if the
Property Trustee has not complied in any material respect with
such obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its
possession as Property Trustee since the date of its last report and
any action taken by the Property Trustee in the performance of its
duties hereunder which it has not previously reported and which in
its opinion materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under this
Trust Agreement as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the Nasdaq National Market or such other interdealer quotation
system or self-regulatory organization upon which the Trust Securities
are listed or traded, with the Commission and with the Depositor.
SECTION 8.16. Reports to the Property Trustee.
Each of the Depositor and the Administrative Trustees shall provide to
the Property Trustee, the Commission and the Holders such documents, reports
and information as required by Section 314 of the Trust Indenture Act (if
any) and the compliance certificate required by Section 314(a) of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act. The Depositor and the Administrative
Trustees shall annually file with the Property Trustee a certificate
specifying whether such Person is in compliance with all of the terms
and covenants applicable to such Person hereunder.
SECTION 8.17. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees shall provide to
the Property Trustee such evidence of compliance with the conditions
precedent, if any, provided for in this Trust Agreement that relate to any
of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form
of an Officers' Certificate.
SECTION 8.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be five, provided that the
Property Trustee and the Delaware Trustee may be the same Person.
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(b) If an Issuer Trustee ceases to hold office for any reason,
a vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall
not operate to annul, dissolve or terminate the Issuer Trust.
SECTION 8.19. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.7(a), including any registration statement or
amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the doing
of such things and the execution of such instruments either in the
name of the Issuer Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient to the extent
such delegation is not prohibited by applicable law or contrary to
the provisions of this Trust Agreement.
SECTION 8.20. Appointment of Administrative Trustees.
(a) The Administrative Trustees shall initially be K. B. Xxxxx, an
individual, X. X. Xxxxxx, an individual, and X. X. Xxxxxx, an individual,
and their successors shall be appointed by the Holders of a Majority in
Liquidation Amount of the Common Securities and may resign or may
be removed by the Holders of a Majority in Liquidation Amount of the
Common Securities at any time. Upon any resignation or removal, the
Depositor shall appoint a successor Administrative Trustee. Each
Administrative Trustee shall sign an agreement agreeing to comply with the
terms of this Trust Agreement. If at any time there is no Administrative
Trustee, the Property Trustee or any Holder who has been a Holder
of Trust Securities for at least six months may petition any court of
competent jurisdiction for the appointment of one or more Administrative
Trustees.
(b) Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with this Section 8.20, the
Administrative Trustees in office, regardless of their number (and not
withstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all
the duties imposed upon the Administrative Trustees by this Trust Agreement.
(c) Notwithstanding the foregoing or any other provision of this
Trust Agreement, if any Administrative Trustee who is a natural person
dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by the unanimous acts of the remaining Administrative Trustees,
if there were at least two of them prior to such vacancy, and by
the Depositor, if there were not two such Administrative Trustees
immediately prior to such vacancy (with the successor being a Person who
satisfies the eligibility requirement for Administrative Trustees set forth
in Section 8.7).
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ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically dissolve
on October 1, 2052 (the "Expiration Date").
SECTION 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early
Dissolution Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from all of the
Holders of the Common Securities at any time to dissolve the Issuer
Trust and to distribute the Debentures to Holders in exchange for the Trust
Preferred Securities (which direction is optional and wholly within
the discretion of the Holders of the Common Securities);
(c) the redemption of all of the Trust Preferred Securities in
connection with the redemption of all the Debentures;
(d) the entry of an order for dissolution of the Issuer Trust by
a court of competent jurisdiction; and
(e) the expiration of the term as provided in Section 9.1.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Issuer Trustees
and the Issuer Trust created and continued hereby shall terminate upon
the latest to occur of the following: (a) the distribution by the Property
Trustee to Holders of all amounts required to be distributed hereunder
upon the liquidation of the Issuer Trust pursuant to Section 9.4, or upon
the redemption of all of the Trust Securities pursuant to Section 4.2;
(b) the payment of any expenses owed by the Issuer Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees,
including the performance of any tax reporting obligations with respect
to the Issuer Trust or the Holders.
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SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or
(d) of Section 9.2 occurs or upon the Expiration Date, the Issuer Trust
shall be liquidated by the Issuer Trustees as expeditiously as the Issuer
Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Issuer Trust as provided by applicable law,
to each Holder a Like Amount of Debentures, subject to Section 9.4(d).
Notice of liquidation shall be given by the Property Trustee by first-class
mail, postage prepaid mailed not less than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities at
such Holder's address appearing in the Securities Register. All such notices
of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be Outstanding and
any Trust Securities Certificates not surrendered for exchange will
be deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to the
procedures by which Holders may exchange Trust Securities
Certificates for Debentures, or if Section 9.4(d) applies
receive a Liquidation Distribution, as Administrative Trustees
or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Issuer Trust and distribution of the Debentures
to Holders, the Property Trustee, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish
a record date for such distribution (which shall be not more than 30 days
prior to the Liquidation Date) and, establish such procedures as it
shall deem appropriate to effect the distribution of Debentures in
exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will
be issued to Holders of Trust Securities Certificates, upon surrender
of such Certificates to the exchange agent for exchange, (iii) the
Depositor shall use its best efforts to have the Debentures listed on
the national stock exchange, the Nasdaq National Market or on such other
exchange, interdealer quotation system or self-regulatory organization as
the Trust Preferred Securities are then listed, (iv) any Trust Securities
Certificates not so surrendered for exchange will be deemed to represent
a Like Amount of Debentures bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid Distributions on such Trust
Securities Certificates until such certificates are so surrendered (and
until such certificates are so surrendered, no payments of interest or
principal will be made to Holders of Trust Securities Certificates with
respect to such Debentures) and (v) all rights of Holders holding Trust
Securities will cease, except the right of such Holders to receive
Debentures upon surrender of Trust Securities Certificates.
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(d) If, notwithstanding the other provisions of this Section 9.4,
whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in
the manner provided herein is determined by the Property Trustee not
to be practical, or if an Early Termination Event specified in Section
9.2(c) occurs, the Trust Property shall be liquidated and the Issuer Trust
shall be wound-up or terminated by the Property Trustee in such manner as
the Property Trustee determines. In such event, Holders will be
entitled to receive out of the assets of the Issuer Trust available for
distribution to Holders, after satisfaction of liabilities to creditors
of the Issuer Trust as provided by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such winding up or termination,
the Liquidation Distribution can be paid only in part because the Issuer
Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence,
the amounts payable by the Issuer Trust on the Trust Securities shall
be paid on a pro rata basis (based upon Liquidation Amounts). The
Holders of the Common Securities will be entitled to receive Liquidation
Distributions upon any such winding-up or termination pro rata (determined
as aforesaid) with Holders of Trust Preferred Securities, except
that, if a Debenture Event of Default specified in Section 5.1(a)
or 5.1(b) of the Indenture has occurred and is continuing, the Trust
Preferred Securities shall have a priority over the Common Securities
as provided in Section 4.3.
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except
pursuant to this Sections 9.4 or 9.5. At the request of the Holders of the
Common Securities, with the consent of the Administrative Trustees, the
Issuer Trust may merge with or into, consolidate, amalgamate or be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the
laws of any state; provided, that (i) such successor entity either (a)
expressly assumes all of the obligations of the Issuer Trust with respect
to the Trust Preferred Securities or (b) substitutes for the Trust Preferred
Securities other securities having substantially the same terms as the Trust
Preferred Securities (the "Successor Securities") so long as the Successor
Securities have the same priority as the Trust Preferred Securities with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) a trustee of such successor entity possessing the same
powers and duties as the Property Trustee is appointed to hold the
Debentures, (iii) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Trust Preferred Securities
(including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization which assigns
ratings to the Trust Preferred Securities, (iv) the Successor Securities are
listed, or any Successor Securities will be listed upon notice of issuance,
on the national securities exchange, the Nasdaq National Market or on such
other exchange, interdealer quotation system or self-regulatory organization
as the Trust Preferred Securities are then listed, if any, (v) such
merger, consolidation,
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amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the
Trust Preferred Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose substantially
identical to that of the Issuer Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and privileges
of the Holders of the Trust Preferred Securities (including any Successor
Securities) in any material respect and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease,
neither the Issuer Trust nor such successor entity will be required to
register as an "investment company" under the Investment Company Act and
(viii) the Depositor or its permitted transferee owns all of the common
securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent
provided by the Guarantee Agreement. Notwithstanding the foregoing,
the Issuer Trust shall not, except with the consent of Holders of all
of the Trust Preferred Securities, consolidate, amalgamate, merge with or
into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to any other entity or permit any other
entity to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Issuer Trust or the successor entity
to be taxable as a corporation or classified as other than a grantor trust
for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death, incapacity, bankruptcy,
dissolution or termination of any Person having an interest, beneficial
or otherwise, in Trust Securities shall not operate to terminate this
Trust Agreement, or dissolve, terminate or annul the Issuer Trust, nor
entitle the legal representatives or heirs of such Person or any Holder
for such Person, to claim an accounting, take any action or bring any
proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee, the Administrative Trustees and the Holders of
all of the Common Securities, without the consent of any Holder
of the Trust Preferred Securities, (i) to cure any ambiguity, correct or
supplement any provision herein that may be inconsistent with any other
provision herein or to make any other provisions with respect to matters
or questions arising under this Trust Agreement which shall not be
inconsistent with the other provisions of this Trust Agreement or (ii) to
modify, eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the
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Issuer Trust will not be taxable as a corporation or classified as other
than a grantor trust for United States federal income tax purposes at all
times that any Trust Securities are outstanding or to ensure that the
Issuer Trust will not be required to register as an "investment company"
under the Investment Company Act, provided, however, that in the case of
either clause (i) or clause (ii) such action shall not adversely affect
in any material respect the interests of any Holder, and any such
amendment of this Trust Agreement shall become effective when notice thereof
is given to the Holders.
(b) Except as provided in Section 10.2(c), any provision of this
Trust Agreement may be amended by the Issuer Trustees and the Holders
of all of the Common Securities and with (i) the consent of Holders of
at least a Majority in Liquidation Amount of the Trust Securities and
(ii) receipt by the Issuer Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Issuer
Trustees in accordance with such amendment will not cause the Issuer Trust
to be taxable as a corporation or as other than a grantor trust for
United States federal income tax purposes or affect the Issuer Trust's
exemption from status as an "investment company" under the Investment
Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder (such
consent being obtained in accordance with Section 6.3 or 6.6), this
Trust Agreement may not be amended to (i) change the amount or timing
of any Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in respect of the
Trust Securities as of a specified date or (ii) restrict the right of a
Holder to institute suit for the enforcement of any such payment on or after
such date; and notwithstanding any other provision herein, without the
unanimous consent of the Holders (such consent being obtained in
accordance with Section 6.3 or 6.6), this Section 10.2(e) may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement,
no Issuer Trustee shall enter into or consent to any amendment to
this Trust Agreement that would cause the Issuer Trust to fail or
cease to qualify for the exemption from status as an "investment company"
under the Investment Company Act or to be taxable as a corporation or to
be classified as other than a grantor trust for United States federal
income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrative
Trustees, this Trust Agreement may not be amended in a manner that
imposes any additional obligation on the Depositor or the Administrative
Trustees.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees or the Property Trustee shall promptly
provide to the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement that
affects its own rights, duties or immunities under this Trust Agreement.
The Property Trustee shall be entitled to receive an Opinion of Counsel
and an Officers' Certificate stating that any amendment to this Trust
Agreement is in compliance with this Trust Agreement.
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SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, AND THE ISSUER TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on
such date but may be made on the next succeeding day that is a Business
Day (except as otherwise provided in Sections 4.1(a) and 4.2(d)), with
the same force and effect as though made on the date fixed for such
payment, and no Distributions shall accumulate on such unpaid amount
for the period after such date.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Issuer Trust and any Issuer
Trustee, including any successor by operation of law. Except in connection
with a consolidation, merger or sale involving the Depositor that
is permitted under Article Eight of the Indenture and pursuant to which
the assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall
not affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or
served to or upon any Holder or the Depositor may be given or served in
writing by deposit thereof, first-class postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each case,
addressed (i) in the case of a Holder of Trust Preferred Securities to such
Holder as such Holder's name and address may appear on the Securities
Register and (ii) in the case of the Holder of the Common Securities,
the Depositor, to South Carolina Electric & Gas Company, 0000 Xxxx Xxxxxx,
Xxxxxxxx, Xxxxx Xxxxxxxx, 00000, Attention: Treasurer, facsimile
no.: (000) 000-0000, or to such other address as may be specified in a
written notice by the Holder of the Common Securities or the Depositor,
as the case may be to the Property Trustee. Such notice, demand or other
communication to or upon a Holder shall be deemed to have been
sufficiently given or made, for
269
all purposes, upon hand delivery, mailing or transmission. Such notice,
demand or other communication to or upon the Depositor shall be
deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Depositor.
Any notice, demand or other communication that by any provision of
this Trust Agreement is required or permitted to be given or served
to or upon the Property Trustee, the Delaware Trustee, the Administrative
Trustees or the Issuer Trust shall be given in writing addressed to
such Person as follows: (i) with respect to the Property Trustee to
The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New
York 10286, Attention: Corporate Trust Administration; (ii) with respect
to the Delaware Trustee, The Bank of New York (Delaware), Xxxxx
Xxxx Xxxxxx, Xxx 000, Xxxxxx, Xxxxxxxx 00000, Attention: Corporate
Trust Administration; (iii) with respect to the Administrative Trustees,
to them at the address above for notices to the Depositor, marked "Attention:
Administrative Trustees of SCE&G Trust I"; and (iv) with respect
to the Issuer Trust, to its principal office specified in Section 2.1,
with a copy to the Property Trustee. Such notice, demand or other
communication to or upon the Issuer Trust, the Property Trustee or the
Administrative Trustees shall be deemed to have been sufficiently given
or made only upon actual receipt of the writing by the Issuer Trust, the
Property Trustee or such Administrative Trustee.
SECTION 10.9. Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit of
the Holders that, until at least one year and one day after the Issuer
Trust has been terminated in accordance with Article IX, they shall not
file, or join in the filing of, a petition against the Issuer Trust under any
bankruptcy, insolvency, reorganization or other similar law (including the
United States Bankruptcy Code) (collectively, "Bankruptcy Laws") or
otherwise join in the commencement of any proceeding against the Issuer
Trust under any Bankruptcy Law. If the Depositor takes action in
violation of this Section 10.9, the Property Trustee agrees, for the
benefit of Holders, that at the expense of the Depositor, it shall file
an answer with the bankruptcy court or otherwise properly contest the
filing of such petition by the Depositor against the Issuer Trust or the
commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and
precluded therefrom and such other defenses, if any, as counsel for
the Issuer Trustees or the Issuer Trust may assert.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement
and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Issuer Trustee that is a
trustee for the purposes of the Trust Indenture Act.
270
(c) If any provision hereof limits, qualifies or conflicts with the
duties imposed by Sections 310 to and including 317 of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control. If any provision of this Trust Agreement modifies or excludes
any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Trust
Agreement as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the
assets of the Issuer Trust.
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee
Agreement and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST
IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT, THE GUARANTEE AGREEMENT AND THE INDENTURE, AND AGREEMENT TO
THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AGREEMENT
AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER
TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS
BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
271
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement.
SOUTH CAROLINA ELECTRIC & GAS COMPANY, as Depositor
By: s/X. X. Xxxxxx
Name: X. X. Xxxxxx
Title: Treasurer
THE BANK OF NEW YORK,
as Property Trustee
By: s/Van X. Xxxxx
Name: Van X. Xxxxx
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title:
s/K. B. Xxxxx
Name: K. B. Xxxxx, as Administrative Trustee
s/X. X. Xxxxxx
Name: X. X. Xxxxxx, as Administrative Trustee
s/ X. X. Xxxxxx
Name: X. X. Xxxxxx, as Administrative Trustee
272
Exhibit A
CERTIFICATE OF TRUST
OF
SCE&G TRUST I
This Certificate of Trust of SCE&G Trust I (the
"Trust"), dated October 8, 1997, is being duly executed and
filed by the undersigned, as trustees, to form a business trust
under the Delaware Business Trust Act (12 Del. C. (S) 3801 et
seq.)
1. Name. The name of the business trust being
formed hereby is SCE&G Trust I.
2. Delaware Trustee. The name and business address
of the trustee of the Trust with a principal place of business
in the State of Delaware is The Bank of New York (Delaware),
whose business address is Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000.
IN WITNESS WHEREOF, the undersigned, being the trustees
of the Trust, have executed this Certificate of Trust as of the
date first above written.
THE BANK OF NEW YORK (Delaware), as Delaware Trustee
By: s/XXXXXX X. XXXXXX
Name: XXXXXX X. XXXXXX
Title: Authorized Signatory
s/X. X. Xxxxxx
X. X. Xxxxxx, as Administrative Trustee
273
Exhibit B
BOOK-ENTRY-ONLY CORPORATE EQUITY ISSUES
Letter of Representations
[To be Completed by Issuer and Agent]
SCE&G TRUST I
[Name of Issuer]
The Bank of New York
[Name of Agent]
OCTOBER 23, 1997
[Date]
Attention: General Counsel's Office
The Depository Trust Company
00 Xxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Re: 7.55% Trust Preferred Securities, Series A
(Liquidation Amount $25 per Trust Preferred
Security)
CUSIP No. 00000X000
[Issue Description, including CUSIP number]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to
certain matters relating to the above-referenced issue (the
"Securities"). Issuer is selling the Securities to Credit Suisse
First Boston Corporation and PaineWebber Incorporated (the
"Initial Purchaser") pursuant to a Underwriting Agreement dated
October 22 , 1997 (the "Document"). Initial Purchaser will take
delivery of the Securities through The Depository Trust Company
("DTC"). The Bank of New York is acting as transfer agent,
paying agent, and registrar with respect to the Securities (the
"Agent").
To induce DTC to accept the Securities as eligible for
deposit at DTC, and to act in accordance with its Rules with
respect to the Securities, Issuer and Agent make the following
representations to DTC.
1. Prior to closing on the Securities on October 28 , 1997
, there shall be deposited with DTC one Security certificate
registered in the name of DTC's nominee, Cede & Co., for each of
the Securities with the offering value set forth on Schedule A
hereto, the total of which represents 100% of the offering value
of such Securities. If, however, the offering value of any
Security exceeds $200 million, one certificate will be issued
with respect to each $200 million of offering value and an
additional certificate will be issued with respect to any
remaining offering value. Each Security certificate shall bear
the following legend:
274
Unless this certificate is presented by an
authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to Issuer
or its agent for registration of transfer,
exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such
other name as is requested by an authorized
representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an
interest herein.
If the Securities will be held by Agent, as custodian for DTC,
such Security certificate shall remain in Agent's custody
pursuant to the provisions of the FAST Balance Certificate
Agreement currently in effect between Agent and DTC.
2. Issuer: (a) understands that DTC has no obligation to,
and will not, communicate to its Participants or to any person
having an interest in the Securities any information contained in
the Security certificate(s); and (b) acknowledges that neither
DTC's Participants nor any person having an interest in the
Securities shall be deemed to have notice of the provisions of
the Security certificate(s) by virtue of submission of such
certificate(s) to DTC.
3. In the event of any solicitation of consents from or
voting by holders of the Securities, Issuer or Agent shall
establish a record date for such purposes (with no provision for
revocation of consents or votes by subsequent holders) and shall
send notice of such record date to DTC not less shall 15 calendar
days in advance of such record date. Notices to DTC pursuant to
this Paragraph by telecopy shall be sent to DTC's Reorganization
Department at (000) 000-0000 or (000) 000-0000, and receipt of
such notices shall be confirmed by telephoning (000) 000-0000.
Notices to DTC pursuant to this Paragraph by mail or by any other
means shall be sent to DTC's Reorganization Department as
indicated in Paragraph 7.
4. In the event of a stock split, recapitalization,
conversion, or any similar transaction resulting in the
cancellation of all or any part of the Securities represented
thereby, the Agent shall send DTC a notice of such event as soon
as practicable, but in no event less than five business days
prior to the effective date of such transaction.
5. In the event of a full or partial redemption, Issuer or
Agent shall send a notice to DTC specifying: (a) the amount of
the redemption or refunding; (b) in the case of a refunding, the
maturity date(s) established under the refunding; and (c) the
date such notice is to be distributed to Security holders or
published (the "Publication Date"). Such notice shall be sent to
DTC by a secure means (e.g., legible telecopy, registered or
certified mail, overnight delivery) in a timely manner designed
to assure that such notice is in DTC's possession no later than
the close of business on the business day before or, if possible,
two business days before the
275
Publication Date. Issuer or Agent shall forward such notice
either in a separate secure transmission for each CUSIP number or
in a secure transmission for multiple CUSIP numbers (if
applicable) which includes a manifest or list of each CUSIP
number submitted in that transmission. (The party sending such
notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date
shall be not less than 30 days nor more than 60 days prior to the
redemption date or, in the case of an advance refunding, the date
that the proceeds are deposited in escrow. Notices to DTC
pursuant to this Paragraph by telecopy shall be sent to DTC's
Call Notification Department at (000) 000-0000 or (000) 000-0000.
If the party sending the notice does not receive a telecopy
receipt from DTC confining that the notice has been received,
such party shall telephone (000) 000-0000. Notices to DTC
pursuant to this Paragraph by mail or by any other means shall be
sent to:
Manager; Call Notification Department
The Depository Trust Company
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
6. In the event of an offering or issuance of rights with
respect to the Securities outstanding, Agent shall send DTC's
Dividend and Reorganization Departments a notice specifying: (a)
the amount of and conditions, if any, applicable to such rights
offering or issuance; (b) any applicable expiration or deadline
date, or any date by which any action on the part of holders of
such Securities is required; and (c) the Publication Date of such
notice.
The Publication Date will be as soon as practicable after
the announcement by the Company of any such offering or issuance
of rights with respect to the Securities represented thereby.
DTC requires that the Publication Date be not less than 30 days
nor more than 60 days prior to the related payment date,
distribution date, or issuance date, respectively.
Notices to DTC pursuant to this Paragraph by telecopy shall
be sent to DTC's Dividend Department at (000) 000-0000, and
receipt of such notices shall be confirmed by telephoning (212)
709-1282. Notices to DTC pursuant to the above by mail or any
other means shall be sent to:
Supervisor; Stock Dividends
Xxxxxxxx Xxxxxxxxxx
0 Xxxxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Notices to DTC pursuant to this Paragraph by telecopy shall
be sent to DTC's Reorganization Department at (000) 000-0000, and
receipt of such fax shall be confirmed by telephoning (2l2) 709--
1063. Notices to DTC pursuant to the above by mail or any other
means shall be sent to
Supervisor; Rights Offerings
Reorganization Department
0 Xxxxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
276
7. In the event of an invitation to tender the Securities
(including mandatory tenders, exchanges, and capital changes),
notice by Issuer or Agent to Security holders specifying the
terms of the tender and the Publication Date of such notice shall
be sent to DTC by a secure means in the manner set forth in
Paragraph 5. Notices to DTC pursuant to this Paragraph and
notices of other corporate actions by telecopy shall be sent to
DTC's Reorganization Department at (000) 000-0000 or (212)
709-1094, and receipt of such notices shall be confirmed by
telephoning (000) 000-0000. Notices to DTC pursuant to the above
by mail or by any other means shall be sent to:
Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
0 Xxxxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx XX 00000-0000
8. All notices and payment advices sent to DTC shall contain
the CUSIP number of the Securities (listed on Schedule A hereto)
and the accompanying description of such Securities, which, as of
the date of this letter, is " 00000X000 ."
9. Issuer or Agent shall provide written notice of dividend
payment information to a standard dividend announcement service
subscribed to by DTC as soon as the information is available. In
the event that no such service exists, Issuer or Agent shall
provide such notice directly to DTC electronically, as previously
arranged by Issuer or Agent and DTC, as soon as the payment
information is available. If electronic transmission has not been
arranged, absent any other arrangements between Issuer or Agent
and DTC, such information should be sent by telecopy to DTC's
Dividend Department at (000) 000-0000 or (000) 000-0000, and
receipt of such notices shall be confirmed by telephoning (212)
709-1270. Notices to DTC pursuant to the above by mail or by any
other means shall be sent to:
Manager; Announcements
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx XX 00000-0000
After establishing the amount of payment to be made on the
Securities in question, Issuer or Agent will notify DTC's
Dividend Department of the payment and payment date preferably
five, but not less than two, business days prior to the effective
date for such transaction.
10. Issuer or Agent shall provide CUSIP-level detail for
dividend payments to DTC no later than noon (Eastern Time) on the
payment date.
277
11. Dividend payments and cash distributions shall be
received by Cede & Co. as nominee of DTC, or its registered
assigns, in same-day funds no later shall 2:30 p.m. (Eastern
Time) on each payment date. Absent any other arrangements between
Issuer or Agent and DTC, such funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Dividend Deposit Account # O66-026776
12. Redemption payments shall be received by Cede & Co., as
nominee of DTC, or its registered assigns; in same-day funds no
later than 2:30 p.m. (Eastern Time) on payment date. Absent any
other arrangements between Agent and DTC, such funds shall be
wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Redemption Deposit Account # 066-027306
13. Reorganization payments resulting from corporate actions
(such as tender offers or mergers) shall be received by Cede &
Co., as nominee of DTC, or its registered assigns, in same-day
funds no later shall 2:30 p.m. (Eastern Time) on payment date.
Absent any other arrangements between Agent and DTC, such funds
shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Reorganization Deposit Account # O66-0276O8
14. DTC may direct Issuer or Agent to use any other number
or address as the number
or address to which notices or payments of dividends,
distributions, or redemption proceeds may be sent.
15. In the event of a redemption, acceleration, or any other
similar transaction (e.g., tender made and accepted in response
to Issuer's or Agent's invitation) necessitating a reduction in
the aggregate principal amount of Securities outstanding or an
advance refunding of part of the Securities outstanding, DTC, in
its discretion: (a) may request Issuer or Agent to issue and
authenticate a new Security certificate; or (b) may make an
appropriate notation on the Security certificate indicating the
date and amount of such reduction in the number of Securities
outstanding, except in the case of final redemption, in which
case the certificate will be presented to Issuer or Agent prior
to payment, if required.
16. In the event that Issuer determines that beneficial owners
of Securities shall be able to obtain certificated Securities,
Issuer or Agent shall notify DTC of the
278
availability of certificates. In such event, Issuer or Agent
shall transfer and exchange certificates in appropriate amounts,
as required by DTC and others.
17. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving
reasonable notice to Issuer or Agent (at which time DTC will
confirm with Issuer or Agent the aggregate principal amount of
Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking
appropriate action to make available one or more separate
certificates evidencing Securities to any DTC Participant having
Securities credited to its DTC accounts.
18. Nothing herein shall be deemed to require Agent to
advance funds on behalf of Issuer.
19. This Letter of Representations may be executed in any
number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts together
shall constitute but one and the same instrument.
20. This Letter of Representations is governed by, and shall
be construed in accordance with, the laws of the State of New
York without giving effect to principles of conflicts of Law.
21. The following riders, attached hereto, are hereby
incorporated into this Letter of Representations:
Notes:
A. If there is an Agent (as defined in this Letter of Representations), Agent
as well as Issuer must sign this Letter. If there is no Agent, in signing this
Letter Issuer itself undertakes to perform all of the obligations set forth
herein Very truly yours,
B. Schedule B contains statements that DTC believes accurately describe DTC,
the method of effecting book-entry transfers of securities distributed through
DTC, and certain related matters.
SCE&G Trust I
(Issuer)
By: s/X. X. Xxxxxx
(Authorized Officer's Signature)
X. X. Xxxxxx
Administrative Trustee
The Bank of New York
(Agent)
By:
(Authorized Office's Signature)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
CC: Underwriter
Underwriter's Counsel
279
SCHEDULE A
2,000,000 Trust Preferred Securities. Series A
(Liquidation
Amount $25 per Trust Preferred Security)
(Describe Issue)
CUSIP Number Share Total Offering ($) Value
78389A 203 2,000,000 50,000,000
280
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be
applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will
act as securities depository for the securities (the
"Securities"). The Securities will be issued as fully-registered
securities registered in the name of Cede & Co. (DTC's
partnership nominee). One fully-registered Security certificate
will be issued for [each issue of] the Securities, [each] in the
aggregate principal amount of such issue, and will be deposited
with DTC. [If, however, the aggregate principal amount of [any]
issue exceeds $200 million, one certificate will be issued with
respect to each $200 million of principal amount and an
additional certificate will be issued with respect to any
remaining principal amount of such issue.]
2. DTC is a limited-purpose trust company organized under
the New York Banking Law, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934. DTC holds securities that its
participants ("Participants") deposit with DTC. DTC also
facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include
securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations. DTC is owned by a
number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc., and the
National Association of Securities Dealers, Inc. Access to the
DTC system is also available to others such as securities brokers
and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant,
either directly or indirectly ("Indirect Participants"). The
Rules applicable to DTC and its Participants are on file with the
Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made
by or through Direct Participants, which will receive a credit
for the Securities on DTC's records. The ownership interest of
each actual purchaser of each Security ("Beneficial Owner") is in
turn to be recorded on the Direct and Indirect Participants'
records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to
receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings,
from the Direct or Indirect Participant through which the
Beneficial Owner entered into the transaction. Transfers of
ownership interests in the Securities are to be
281
accomplished by entries made on the books of Participants acting
on behalf of Beneficial Owners. Beneficial Owners will not
receive certificates representing their ownership interests in
Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
4. To facilitate subsequent transfers, all Securities
deposited by Participants with DTC are registered in the name of
DTC's partnership nominee, Cede & Co. The deposit of Securities
with DTC and their registration in the name of Cede & Co. effect
no change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Securities; DTC's records reflect
only the identity of the Direct Participants to whose accounts
such Securities are credited, which may or may not be the
Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to
Direct Participants, by Direct Participants to Indirect
Participants, and by Direct Participants and Indirect
Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
[6. Redemption notices shall be sent to DTC. If less than
all of the Securities within an issue are being redeemed, DTC's
practice is to determine by lot the amount of the interest of
each Direct Participant in such issue to be redeemed.]
7. Neither DTC nor Cede & Co. will consent or vote with
respect to Securities. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting
rights to those Direct Participants to whose accounts the
Securities are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments
on the Securities will be made to Cede & Co., as nominee of DTC.
DTC's practice is to credit Direct Participants' accounts, upon
DTC's receipt of funds and corresponding detail information from
Issuer or Agent on payable date in accordance with their
respective holdings shown on DTC's records. Payments by
Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any
statutory or regulatory requirements as may be in effect from
time to time. Payment of redemption proceeds, distributions, and
dividends to Cede & Co. is the responsibility of Issuer or Agent,
disbursement of such payments to Direct Participants shall be the
responsibility of Cede & Co., and disbursement of such payments
to the Beneficial Owners shall be the responsibility of Direct
and Indirect Participants.
282
[9. A Beneficial Owner shall give notice to elect to have
its Securities purchased or tendered, through its Participant, to
[Tender/Remarketing] Agent, and shall effect delivery of such
Securities by causing the Direct Participant to transfer the
Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery
of Securities in connection with an optional tender or a
mandatory purchase will be deemed satisfied when the ownership
rights in the Securities are transferred by Direct Participants
on DTC's records and followed by a book-entry credit of tendered
securities to [Tender/Remarketing] Agents DTC account.]
10. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving
reasonable notice to Issuer or Agent. Under such circumstances,
in the event that a successor securities depository is not
obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor securities
depository). In that event, Security certificates will be printed
and delivered.
12. The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that Issuer
believes to be reliable, but Issuer takes no responsibility for
the accuracy thereof.
283
Exhibit C
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN
COMPLIANCE WITH APPLICA
