Exhibit 4-A
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SOUTH CAROLINA ELECTRIC & GAS COMPANY
as Issuer
to
THE BANK OF NEW YORK,
as Trustee
---------------------------
JUNIOR SUBORDINATED INDENTURE
Dated as of ___________ 1, 1997
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SOUTH CAROLINA ELECTRIC & GAS COMPANY
Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and
including 317 which, pursuant to Section 318(c) of the Trust
Indenture Act of 1939, as amended by the Trust Reform Act of 1990,
are a part of and govern the Indenture whether or not physically
contained therein) and the Junior Subordinated Indenture, dated as
of ___________ 1, 1997.
104
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
Section 310 (a) (1), (2) and (5) 6.9
(a) (3) Not Applicable
(a) (4) Not Applicable
(b) 6.8, 6.10(d)
(c) Not Applicable
Section 311 (a) 6.13
(b) 6.13
(c) Not Applicable
Section 312 (a) 7.1, 7.2(a)
(b) 7.2(b)
(c) 7.2(c)
Section 313 (a) 7.3(a), (b)
(b) 7.3(a)
(c) 7.3(a)
(d) 7.3(c)
Section 314 (a) (1), (2) and (3) 7.4
(a) (4) 10.4
(b) Not Applicable
(c) (1) 1.2
(c) (2) 1.2
(c) (3) Not Applicable
(d) Not Applicable
(e) 1.2
(f) Not Applicable
Section 315 (a) 6.1(a)
(b) 6.2
(c) 6.1(b)
(d) 6.1(c)
(d) (1) 6.1(c)(i)
(d) (2) 6.1(c)(ii)
(d) (3) 6.1(c) (iii)
(e) 5.14
Section 316 (a) 1.1
(a) (1) (A) 5.12
(a) (1) (B) 5.13
(a) (2) Not Applicable
(b) 5.7, 5.8
(c) 1.4(f)
Section 317 (a) (1) 5.3
(a) (2) 5.4
(b) 10.3
Section 318 (a) 1.7
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Junior Subordinated Indenture.
105
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
SECTION 1.1. Definitions 1
SECTION 1.2. Compliance Certificate and Opinions 10
SECTION 1.3. Forms of Documents Delivered to
Trustee 10
SECTION 1.4. Acts of Holders 11
SECTION 1.5. Notices, Etc. to the Trustee and the
Corporation 13
SECTION 1.6. Notice to Holders; Waiver 13
SECTION 1.7. Conflict with Trust Indenture Act 14
SECTION 1.8. Effect of Headings and Table of
Contents 14
SECTION 1.9. Successors and Assigns 14
SECTION 1.10. Separability Clause 14
SECTION 1.11. Benefits of Indenture 14
SECTION 1.12. Governing Law 15
SECTION 1.13. Non-Business Days 15
ARTICLE II
SECURITY FORMS 15
SECTION 2.1. Forms Generally 15
SECTION 2.2. Form of Face of Security 15
SECTION 2.3. Form of Reverse of Security 19
SECTION 2.4. Additional Provisions Required in
Global Security 23
SECTION 2.5. Form of Trustee's Certificate of
Authentication 23
ARTICLE III
THE SECURITIES 23
SECTION 3.1. Title and Terms 23
SECTION 3.2. Denominations 26
SECTION 3.3. Execution, Authentication, Delivery
and Dating 27
SECTION 3.4. Temporary Securities 28
SECTION 3.5. Global Securities 28
SECTION 3.6. Registration, Transfer and Exchange
Generally 30
SECTION 3.7. Mutilated, Destroyed, Lost and
Stolen Securities 31
106
SECTION 3.8. Payment of Interest and Additional
Interest; Interest Rights Preserved 32
SECTION 3.9. Persons Deemed Owners 33
SECTION 3.10. Cancellation 33
SECTION 3.11. Computation of Interest 34
SECTION 3.12. Deferrals of Interest Payment Dates 34
SECTION 3.13. Right of Set Off 35
SECTION 3.14. Agreed Tax Treatment 35
SECTION 3.15. Shortening or Extension of Stated
Maturity 35
SECTION 3.16. CUSIP Numbers 35
ARTICLE IV
SATISFACTION AND DISCHARGE 36
SECTION 4.1. Satisfaction and Discharge of Indenture 36
SECTION 4.2. Application of Trust Money 37
ARTICLE V
REMEDIES 37
SECTION 5.1. Events of Default 37
SECTION 5.2. Acceleration of Maturity; Rescission
and Annulment 38
SECTION 5.3. Collection of Indebtedness and Suits
for Enforcement by Trustee 40
SECTION 5.4. Trustee May File Proofs of Claim 40
SECTION 5.5. Trustee May Enforce Claim Without
Possession of Securities 41
SECTION 5.6. Application of Money Collected 41
SECTION 5.7. Limitation on Suits 42
SECTION 5.8. Unconditional Right of Holders to
Receive Principal, Premium and
Interest; Direct Action by Holders
of Trust Preferred Securities 42
SECTION 5.9. Restoration of Rights and Remedies 43
SECTION 5.10. Rights and Remedies Cumulative 43
SECTION 5.11. Delay or Omission Not Waiver 43
SECTION 5.12. Control by Holders 44
SECTION 5.13. Waiver of Past Defaults 44
SECTION 5.14. Undertaking for Costs 45
SECTION 5.15. Waiver of Usury, Stay or Extension Laws 45
107
ARTICLE VI
THE TRUSTEE 45
SECTION 6.1. Certain Duties and Responsibilities 45
SECTION 6.2. Notice of Defaults 46
SECTION 6.3. Certain Rights of Trustee 47
SECTION 6.4. Not Responsible for Recitals or Issuance
of Securities 48
SECTION 6.5. May Hold Securities 48
SECTION 6.6. Money Held in Trust 48
SECTION 6.7. Compensation and Reimbursement 48
SECTION 6.8. Disqualification; Conflicting Interests 49
SECTION 6.9. Corporate Trustee Required; Eligibility 49
SECTION 6.10. Resignation and Removal; Appointment
of Successor 50
SECTION 6.11. Acceptance of Appointment by Successor 51
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business 52
SECTION 6.13. Preferential Collection of Claims
Against Corporation 52
SECTION 6.14. Appointment of Authenticating Agent 52
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND CORPORATION 54
SECTION 7.1. Corporation to Furnish Trustee Names
and Addresses of Holders 54
SECTION 7.2. Preservation of Information,
Communications to Holders 54
SECTION 7.3. Reports by Trustee 55
SECTION 7.4. Reports by Corporation 55
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE 55
SECTION 8.1. Corporation May Consolidate, Etc.,
Only on Certain Terms 55
SECTION 8.2. Successor Corporation Substituted 56
108
ARTICLE IX
SUPPLEMENTAL INDENTURES 57
SECTION 9.1. Supplemental Indentures without
Consent of Holders 57
SECTION 9.2. Supplemental Indentures with Consent
of Holders 58
SECTION 9.3. Execution of Supplemental Indentures 59
SECTION 9.4. Effect of Supplemental Indentures 59
SECTION 9.5. Conformity with Trust Indenture Act 60
SECTION 9.6. Reference in Securities to
Supplemental Indentures 60
ARTICLE X
COVENANTS 60
SECTION 10.1. Payment of Principal, Premium and
Interest 60
SECTION 10.2. Maintenance of Office or Agency 60
SECTION 10.3. Money for Security Payments to be
Held in Trust 61
SECTION 10.4. Statement as to Compliance 62
SECTION 10.5. Waiver of Certain Covenants 62
SECTION 10.6. Additional Sums 63
SECTION 10.7. Additional Covenants 63
SECTION 10.8. Original Issue Discount 64
ARTICLE XI
REDEMPTION OF SECURITIES 64
SECTION 11.1 Applicability of This Article 64
SECTION 11.2. Election to Redeem; Notice to Trustee 65
SECTION 11.3. Selection of Securities to be Redeemed 65
SECTION 11.4. Notice of Redemption 65
SECTION 11.5. Deposit of Redemption Price 66
SECTION 11.6. Payment of Securities Called for
Redemption 67
SECTION 11.7. Right of Redemption of Securities
Initially Issued to an Issuer Trust 67
ARTICLE XII
SINKING FUNDS 68
SECTION 12.1. Applicability of Article 68
SECTION 12.2. Satisfaction of Sinking Fund Payments
with Securities 68
SECTION 12.3. Redemption of Securities for Sinking
Fund 68
109
ARTICLE XIII
SUBORDINATION OF SECURITIES 70
SECTION 13.1. Securities Subordinate to Senior Debt 70
SECTION 13.2. No Payment When Senior Debt in Default;
Payment Over of Proceeds Upon
Dissolution, Etc 70
SECTION 13.3. Payment Permitted If No Default 72
SECTION 13.4. Subrogation to Rights of Holders of
Senior Debt 72
SECTION 13.5. Provisions Solely to Define Relative
Rights 72
SECTION 13.6. Trustee to Effectuate Subordination 73
SECTION 13.7. No Waiver of Subordination Provisions 73
SECTION 13.8. Notice to Trustee 73
SECTION 13.9. Reliance on Judicial Order or
Certificate of Liquidating Agent 74
SECTION 13.10. Trustee Not Fiduciary for Holders of
Senior Debt 74
SECTION 13.11. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's
Rights 75
SECTION 13.12. Article Applicable to Paying Agents 75
110
JUNIOR SUBORDINATED INDENTURE, dated as of ___________ 1,
1997, between South Carolina Electric & Gas Company, a South
Carolina corporation (the "Corporation"), and The Bank of New York,
a corporation organized and existing under the laws of the State of
New York, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Corporation has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to
time of its unsecured junior subordinated debt securities in series
(hereinafter called the "Securities") of substantially the tenor
hereinafter provided, including Securities issued to evidence loans
made to the Corporation of the proceeds from the issuance from time
to time by one or more business trusts (each an "Issuer Trust") of
preferred undivided beneficial interests in the assets of such
Issuer Trusts (the "Trust Preferred Securities") and common
undivided beneficial interests in the assets of such Issuer Trusts
(the "Common Securities" and, collectively with the Trust Preferred
Securities, the "Trust Securities"), and to provide the terms and
conditions upon which the Securities are to be authenticated,
issued and delivered; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Corporation in accordance with its terms, have
been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(b) All other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
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(c) The words "include," "includes" and "including"
shall be deemed to be followed by the phrase "without limitation";
(d) All accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles;
(e) Whenever the context may require, any gender shall
be deemed to include the others;
(f) Unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an Article or a
Section, as the case may be, of this Indenture; and
(g) The words "hereby," "herein," "hereof" and
"hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or
other subdivision.
"Act" when used with respect to any Holder has the meaning
specified in Section 1.4.
"Additional Interest" means the interest, if any, that shall
accrue on any interest on the Securities of any series the payment
of which has not been made on the applicable Interest Payment Date
and which shall accrue at the rate per annum specified or
determined as specified in such Security.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means any additional taxes, duties and
other governmental charges to which an Issuer Trust has become
subject from time to time as a result of a Tax Event.
"Administrative Trustees" means, in respect of any Issuer
Trust, each Person identified as an "Administrative Trustee" in the
related Trust Agreement, solely in such Person's capacity as
Administrative Trustee of such Issuer Trust under such Trust
Agreement and not in such Person's individual capacity, or any
successor administrative trustee appointed as therein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the
purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Agent Member" means any member of, or participant in, the
Depositary.
112
"Allocable Amounts," when used with respect to any Senior
Subordinated Indebtedness of the Corporation means the amount
necessary to pay all principal of (and premium, if any) and
interest, if any, on such Senior Subordinated Indebtedness of the
Corporation, in full less, if applicable, any portion of such
amounts which would have been paid to, and retained by, the holders
of such Senior Subordinated Indebtedness (whether as a result of
the receipt of payments by the holders of such Senior Subordinated
Indebtedness from the Corporation or any other obligor thereon or
from any holders of, or trustee in respect of, other indebtedness
that is subordinate and junior in right of payment to such Senior
Subordinated Indebtedness pursuant to any provision of such
indebtedness for the payment over of amounts received on account of
such indebtedness to the holders of such Senior Subordinated
Indebtedness) but for the fact that such Senior Subordinated
Indebtedness is subordinate or junior in right of payment to trade
accounts payable or accrued liabilities arising in the ordinary
course of business.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest
therein, the rules and procedures of the Depositary for such
Security, in each case to the extent applicable to such transaction
and as in effect from time to time.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Bankruptcy Code" means Title 11 of the United States Code or
any successor statute thereto, in each case as amended from time to
time.
"Board of Directors" means the board of directors of the
Corporation or the Executive Committee of the board of directors of
the Corporation (or any other committee of the board of directors
of the Corporation performing similar functions) or a committee
designated by the board of directors of the Corporation (or such
committee), comprised of two or more members of the board of
directors or officers, or both, of the Corporation in each case as
the context requires.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Corporation to have
been duly adopted by the Board of Directors, or officers of the
Corporation to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
113
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions in the City of New
York are authorized or required by law or executive order to remain
closed or (c) a day on which the Corporate Trust Office of the
Trustee, or, with respect to the Securities of a series initially
issued to an Issuer Trust for so long as such Securities are held
by such Issuer Trust, the "Corporate Trust Office" (as defined in
the related Trust Agreement) of the Property Trustee under the
related Trust Agreement, is closed for business.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or
if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing such
duties on such date.
"Common Securities" has the meaning specified in the first
recital of this Indenture.
"Common Stock" means the common stock of the Corporation.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust
business shall be administered.
"Corporation" includes a corporation, association, company,
limited liability company, joint-stock company or business trust.
"Corporation" means the Person named as the "Corporation" in
the first paragraph of this Indenture until a successor corporation
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Corporation" shall mean such
successor corporation.
"Corporation Request" and "Corporation Order" mean,
respectively, the written request or order signed in the name of
the Corporation by the Chairman of the Board of Directors, its
Chief Executive Officer, its President, its Chief Financial
Officer, a Vice President or its Treasurer, and by its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Debt" means, with respect to any Person, whether recourse is
to all or a portion of the assets of such Person and whether or not
contingent and without duplication, (i) every obligation of such
Person for money borrowed; (ii) every obligation of such Person
evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition
of property, assets or businesses; (iii) every reimbursement
obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account
of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but
114
excluding trade accounts payable or accrued liabilities arising in
the ordinary course of business); (v) every capital lease
obligation of such Person; (vi) all indebtedness of the
Corporation, whether incurred on or prior to the date of this
Indenture or thereafter incurred, for claims in respect of
derivative products, including interest rate, foreign exchange rate
and commodity forward contracts, options and swaps and similar
arrangements; and (vii) every obligation of the type referred to in
clauses (i) through (vi) of another Person and all dividends of
another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable for, directly or
indirectly, as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.8.
"Delaware Trustee" means, with respect to any Issuer Trust,
the Person identified as the "Delaware Trustee" in the related
Trust Agreement, solely in its capacity as Delaware Trustee of such
Issuer Trust under such Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any
successor Delaware trustee appointed as therein provided.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or
more Global Securities, the Person designated as Depositary by the
Corporation pursuant to Section 3.1 with respect to such series (or
any successor thereto).
"Discount Security" means any security that provides for an
amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant
to Section 5.2.
"Distributions," with respect to the Trust Securities issued
by an Issuer Trust, means amounts payable in respect of such Trust
Securities as provided in the related Trust Agreement and referred
to therein as "Distributions."
"Dollar" or "$" means the currency of the United States of
America that, as at the time of payment, is legal tender for the
payment of public and private debts.
"Event of Default," unless otherwise specified with respect to
a series of Securities as contemplated by Section 3.1, has the
meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 or
any statute successor thereto, in each case as amended from time to
time.
"Expiration Date" has the meaning specified in Section 1.4.
"Extension Period" has the meaning specified in Section 3.12.
115
"Global Security" means a Security in the form prescribed in
Section 2.4 evidencing all or part of a series of Securities,
issued to the Depositary or its nominee for such series, and
registered in the name of such Depositary or its nominee.
"Guarantee Agreement" means, with respect to any Issuer Trust,
the Guarantee Agreement executed by the Corporation for the benefit
of the Holders of the Trust Preferred Securities issued by such
Issuer Trust as modified, amended or supplemented from time to
time.
"Holder" means a Person in whose name a Security is registered
in the Securities Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of each
particular series of Securities established as contemplated by
Section 3.1.
"Interest Payment Date" means, as to each series of
Securities, the Stated Maturity of an installment of interest on
such Securities.
"Investment Company Act" means the Investment Company Act of
1940 or any successor statute thereto, in each case as amended from
time to time.
"Issuer Trust" has the meaning specified in the first recital
of this Indenture.
"Maturity" when used with respect to any Security means the
date on which the principal of such Security or any installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 6.2.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President,
the Chief Financial Officer, a Vice President, the Chief Financial
Officer or the Treasurer, and by the Secretary or an Assistant
Secretary, of the Corporation and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Corporation or any
Affiliate of the Corporation.
116
"Original Issue Date" means the date of issuance specified as
such in each Security.
"Outstanding" means, when used in reference to the Securities,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities for whose payment money in the necessary
amount has been theretofore deposited with the Trustee or any
Paying Agent in trust for the Holders of such Securities; and
(c) Securities in substitution for or in lieu of which
other Securities have been authenticated and delivered or that have
been paid pursuant to Section 3.7, unless proof satisfactory to the
Trustee is presented that any such Securities are held by Holders
in whose hands such Securities are valid, binding and legal
obligations of the Corporation;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Corporation or any other
obligor upon the Securities or any Affiliate of the Corporation or
such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities that the Trustee knows to be so owned shall be so
disregarded. Securities so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the
Corporation or any other obligor upon the Securities or any
Affiliate of the Corporation or such other obligor. Upon the
written request of the Trustee, the Corporation shall furnish to
the Trustee promptly an Officers' Certificate listing and
identifying all Securities, if any, known by the Corporation to be
owned or held by or for the account of the Corporation, or any
other obligor on the Securities or any Affiliate of the Corporation
or such obligor, and subject to the provisions of Section 6.1, the
Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact
that all Securities not listed therein are Outstanding for the
purpose of any such determination. Notwithstanding anything herein
to the contrary, Securities of any series initially issued to an
Issuer Trust that are owned by such Issuer Trust shall be deemed to
be Outstanding notwithstanding the ownership by the Corporation or
an Affiliate of any beneficial interest in such Issuer Trust.
117
"Paying Agent" means the Trustee or any Person authorized by
the Corporation to pay the principal of (or premium, if any) or
interest on, or other amounts in respect of, any Securities on
behalf of the Corporation.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, trust,
unincorporated association or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Place of Payment" means, with respect to the Securities of
any series, the place or places where the principal of (and
premium, if any) and interest on the Securities of such series are
payable pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security. For the purposes of
this definition, any security authenticated and delivered under
Section 3.7 in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, with respect to any Issuer Trust,
the Person identified as the "Property Trustee" in the related
Trust Agreement, solely in its capacity as Property Trustee of such
Issuer Trust under such Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any
successor Property Trustee appointed as therein provided.
"Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture or the terms of such Security.
"Redemption Price," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date with respect to the Securities of a series means,
unless otherwise provided pursuant to Section 3.1 with respect to
Securities of such series, the date that is 15 days next preceding
such Interest Payment Date (whether or not a Business Day).
"Responsible Officer," when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors,
the chairman or any vice-chairman of the executive committee of the
board of directors, the chairman of the trust committee, the
president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer,
118
the controller or any assistant controller or any other officer of
the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Rights Plan" means a plan of the Corporation providing for
the issuance by the Corporation to all holders of its Common Stock
of rights entitling the holders thereof to subscribe for or
purchase shares of any class or series of capital stock of the
Corporation which rights (i) are deemed to be transferred with such
shares of such Common Stock and (ii) are also issued in respect of
future issuances of such Common Stock, in each case until the
occurrence of a specified event or events.
"Securities" or "Security" means any debt securities or debt
security, as the case may be, authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 or any
successor statute thereto, in each case as amended from time to
time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 3.6.
"Senior Debt" of the Corporation means (i) Senior Indebtedness
of the Corporation (but excluding trade accounts payable and
accrued liabilities arising in the ordinary course of business) and
(ii) the Allocable Amounts of Senior Subordinated Indebtedness of
the Corporation.
"Senior Indebtedness" means any obligation of the Corporation
to its creditors, whether now outstanding or subsequently incurred,
other than any obligation as to which, in the instrument creating
or evidencing the obligation or pursuant to which the obligation is
outstanding, it is provided that such obligation is not Senior
Indebtedness. Senior Indebtedness does not include Senior
Subordinated Indebtedness or the Securities.
"Senior Subordinated Indebtedness" means any obligation of the
Corporation to its creditors, whether now outstanding or
subsequently incurred, where the instrument creating or evidencing
the obligation or pursuant to which the obligation is outstanding
provides that it is subordinate and junior in right of payment to
Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
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"Stated Maturity," when used with respect to any Security or
any installment of principal thereof (or premium, if any) or
interest (including any Additional Interest) thereon, means the
date specified pursuant to the terms of such Security as the fixed
date on which the principal of such Security or such installment of
principal (or premium, if any) or interest (including any
Additional Interest) is due and payable, as such date may, in the
case of the stated maturity of the principal on any security, be
shortened or extended as provided pursuant to the terms of such
Security and this Indenture and, in the case of any installment of
interest, subject to the deferral of any such date in the case of
any Extension Period.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly,
by the Corporation or by one or more other Subsidiaries, or by the
Corporation and one or more other Subsidiaries. For purposes of
this definition, "voting stock" means stock that ordinarily has
voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power by
reason of any contingency.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same
debt as that evidenced by, such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 3.7 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Tax Event" means the receipt by an Issuer Trust of an Opinion
of Counsel (as defined in the relevant Trust Agreement) experienced
in such matters to the effect that, as a result of any amendment
to, or change (including any announced proposed change) in, the
laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or as
a result of any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision
is announced on or after the date of issuance of the Trust
Preferred Securities of such Issuer Trust, there is more than an
insubstantial risk that (i) such Issuer Trust is, or will be within
90 days of the delivery of such Opinion of Counsel, subject to
United States federal income tax with respect to income received or
accrued on the corresponding series of Securities issued by the
Corporation to such Issuer Trust, (ii) interest payable by the
Corporation on such corresponding series of Securities is not, or
within 90 days of the delivery of such Opinion of Counsel will not
be, deductible by the Corporation, in whole or in part, for United
States federal income tax purposes or (iii) such Issuer Trust is,
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or will be within 90 days of the delivery of such Opinion of
Counsel, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"Trust Agreement" means, with respect to any Issuer Trust, the
trust agreement or other governing instrument of such Issuer Trust.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, solely in its capacity as such and not
in its individual capacity, until a successor Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder and, if at any time there is
more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended and as in effect on the date as of this Indenture,
except as provided in Section 9.5.
"Trust Preferred Securities" has the meaning specified in the
first recital of this Indenture.
"Trust Securities" has the meaning specified in the first
recital of this Indenture.
"Vice President" means any duly appointed vice president,
whether or not designated by a number or a word or words added
before or after the title "vice president," of the Corporation.
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Corporation to the
Trustee to take any action under any provision of this Indenture,
the Corporation shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent (including
covenants compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent
(including covenants compliance with which constitutes a condition
precedent), if any, have been complied with, except that in the
case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other than
the certificates provided pursuant to Section 10.4) shall include:
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(a) a statement by each individual signing such
certificate or opinion that such individual has read such covenant
or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
of such individual contained in such certificate or opinion are
based;
(c) a statement that, in the opinion of such individual,
he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(d) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Corporation
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Corporation stating that the information with
respect to such factual matters is in the possession of the
Corporation unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
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SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given to or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments is or
are delivered to the Trustee, and, where it is hereby expressly
required, to the Corporation. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Corporation
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by the certificate of any notary
public or other officer authorized by law to take acknowledgments
of deeds, certifying that the individual signing such instrument or
writing acknowledged to him or her the execution thereof. Where
such execution is by a Person acting in other than his or her
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his or her authority.
(c) The fact and date of the execution by any Person of any
such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner that the
Trustee deems sufficient and in accordance with such reasonable
rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the
Securities Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or suffered
to be done by the Trustee or the Corporation in reliance thereon,
whether or not notation of such action is made upon such Security.
(f) The Corporation may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of any
series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series, provided that the
Corporation may not set a record date for, and the provisions of
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this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to
in the next succeeding paragraph. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities
of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date, provided that no
such action shall be effective hereunder unless taken on or prior
to the applicable Expiration Date (as defined below) by Holders of
the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be
construed to prevent the Corporation from setting a new record date
for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously
set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Corporation,
at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities of
the relevant series in the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any series
entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in
Section 5.2, (iii) any request to institute proceedings referred to
in Section 5.7(b) or (iv) any direction referred to in Section
5.12, in each case with respect to Securities of such series. If
any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders
remain Holders after such record date, provided that no such action
shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record
date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and
nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant to
this paragraph, the Trustee, at the Corporation's expense, shall
cause notice of such record date, the proposed action by Holders
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and the applicable Expiration Date to be given to the Corporation
in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section,
the party that sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration
Date to any earlier or later day, provided that no such change
shall be effective unless notice of the proposed new Expiration
Date is given to the other party hereto in writing, and to each
Holder of Securities of the relevant series in the manner set forth
in Section 1.6, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date
set pursuant to this Section, the party hereto that set such record
date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in
this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any
particular Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly appointed
agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.5. Notices, Etc. to the Trustee and the
Corporation.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(a) the Trustee by any Holder, any holder of Trust
Preferred Securities or the Corporation shall be sufficient for
every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(b) the Corporation by the Trustee, any Holder or any
holder of Trust Preferred Securities shall be sufficient for every
purpose (except as otherwise provided in Section 6.2) hereunder if
in writing and mailed, first class, postage prepaid, to the
Corporation addressed to it at the address of its principal office
specified adjacent to the Corporation's signature to this
instrument or at any other address previously furnished in writing
to the Trustee by the Corporation.
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SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first class
postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Securities Register,
not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. If, by reason of
the suspension of or irregularities in regular mail service or for
any other reason, it shall be impossible or impracticable to mail
notice of any event to Holders when said notice is required to be
given pursuant to any provision of this Indenture or of the
relevant Securities, then any manner of giving such notice as shall
be satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice. In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by any of Sections 310 to and
including 317 of the Trust Indenture Act through operation of
Section 318(c) thereof, such imposed duties shall control. If any
provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the
Corporation shall bind its successors and assigns, whether so
expressed or not.
126
SECTION 1.10. Separability Clause.
If any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto
and their successors and assigns, the holders of Senior Debt, the
Holders of the Securities and, to the extent expressly provided in
Sections 5.1, 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2, the holders
of Trust Preferred Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the
Securities) payment of interest or principal (and premium, if any)
or other amounts in respect of such Security need not be made on
such date, but may be made on the next succeeding Business Day (and
no interest shall accrue in respect of the amounts whose payment is
so delayed for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, until
such next succeeding Business Day) except that, if such Business
Day falls in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day (in each case
with the same force and effect as if made on the Interest Payment
Date or Redemption Date or at the Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in
this Article, or in such other form or forms as shall be
established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters,
numbers or other marks of identification and such legends or
127
endorsements placed thereon as may be required to comply with
applicable tax laws or the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing
such securities, as evidenced by their execution of the Securities.
If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Corporation and delivered to the Trustee
at or prior to the delivery of the Corporation Order contemplated
by Section 3.3 with respect to the authentication and delivery of
such Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods, if
required by any securities exchange on which the Securities may be
listed, on a steel engraved border or steel engraved borders or may
be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced
by their execution of such Securities.
SECTION 2.2. Form of Face of Security.
SOUTH CAROLINA ELECTRIC & GAS COMPANY
[TITLE OF SECURITY]
No. $
SOUTH CAROLINA ELECTRIC & GAS COMPANY, a corporation organized
and existing under the laws of South Carolina (hereinafter called
the "Corporation," which term includes any successor Person under
the Indenture hereinafter referred to), for value received, hereby
promises to pay to _______________, or registered assigns, the
principal sum of __________ Dollars on __________ __, [if the
Security is a Global Security, then insert, if applicable--, or
such other principal amount represented hereby as may be set forth
in the records of the Securities Registrar hereinafter referred to
in accordance with the Indenture,] [; provided that the Corporation
may (i) shorten the Stated Maturity of the principal of this
Security to a date not earlier than __________, in the
circumstances described on the reverse hereof. The Corporation
further promises to pay interest on said principal sum from
_______________________, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for,
[monthly] [quarterly] [semi-annually] [if applicable, insert--
(subject to deferral as set forth herein)] in arrears on [insert
applicable Interest Payment Dates] of each year, commencing
, at the rate of % per annum, [if
applicable insert--together with Additional Sums, if any, as
provided in Section 10.6 of the Indenture] until the principal
hereof is paid or duly provided for or made available for payment
[if applicable, insert-- ; provided that any overdue principal,
premium or Additional Sums and any overdue installment of interest
128
shall bear Additional Interest at the rate of ________% per annum
(to the extent that the payment of such interest shall be legally
enforceable), compounded [monthly] [quarterly] [semi-annually],
from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on
demand]. The amount of interest payable for any period less than a
full interest period shall be computed on the basis of a 360- day
year of twelve 30-day months and the actual days elapsed in a
partial month in such period. The amount of interest payable for
any full interest period shall be computed by dividing the
applicable rate per annum by [twelve/four/two]. The interest so
payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the regular
record date (the "Regular Record Date") for such interest
installment [if applicable insert--, which shall be the
[____________ or ____________] (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date]. Any
such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record
Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities of this series not less
than ten days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of
this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
[If applicable, insert--So long as no Event of Default has
occurred and is continuing, the Corporation shall have the right,
at any time during the term of this Security, from time to time to
defer the payment of interest on this Security for up to [_______]
consecutive [monthly] [quarterly] [semi-annual] interest payment
periods with respect to each deferral period (each an "Extension
Period") [If applicable, insert--, during which Extension Periods
the Corporation shall have the right to make partial payments of
interest on any Interest Payment Date, and] at the end of which the
Corporation shall pay all interest then accrued and unpaid
including any Additional Interest, as provided below; provided,
however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of this Security [If Stated Maturity can
be shortened or extended, insert--, as then in effect,] and no such
Extension Period may end on a date other than an Interest Payment
Date; and provided, further, that during any such Extension Period,
the Corporation shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Corporation's
capital stock, or (ii) make any payment of principal of or interest
or premium, if any, on or repay, repurchase or redeem any debt
129
securities of the Corporation that rank pari passu in all respects
with or junior in interest to this Security (other than (a)
repurchases, redemptions or other acquisitions of shares of capital
stock of the Corporation in connection with any employment
contract, benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance
of capital stock of the Corporation (or securities convertible into
or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable
Extension Period, (b) as a result of an exchange or conversion of
any class or series of the Corporation's capital stock (or any
capital stock of a Subsidiary of the Corporation) for any class or
series of the Corporation's capital stock or of any class or series
of the Corporation's indebtedness for any class or series of the
Corporation's capital stock, (c) the purchase of fractional
interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a
dividend in connection with any Rights Plan, or the issuance of
rights, stock or other property under any Rights Plan, or the
redemption or repurchase of rights pursuant thereto or (e) any
dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior
to such stock). Prior to the termination of any such Extension
Period, the Corporation may further defer the payment of interest,
provided that no Extension Period shall exceed consecutive
[monthly] [quarterly] [semi-annual] interest payment periods,
extend beyond the Stated Maturity of the principal of this Security
or end on a date other than an Interest Payment Date. Upon the
termination of any such Extension Period and upon the payment of
all accrued and unpaid interest and any Additional Interest then
due on any Interest Payment Date, the Corporation may elect to
begin a new Extension Period, subject to the above conditions. No
interest shall be due and payable during an Extension Period,
except at the end thereof, but each installment of interest that
would otherwise have been due and payable during such Extension
shall bear Additional Interest (to the extent that the payment of
such interest shall be legally enforceable) at the rate of ____%
per annum, compounded [monthly] [quarterly] [semi-annually] and
calculated as set forth in the first paragraph of this Security,
from the dates on which amounts would otherwise have been due and
payable until paid or made available for payment. The Corporation
shall give the Holder of this Security and the Trustee notice of
its election to begin any Extension Period at least one Business
Day prior to the next succeeding Interest Payment Date on which
interest on this Security would be payable but for such deferral
[if applicable, insert--or so long as such Securities are held by
[insert name of applicable Issuer Trust], at least one Business Day
prior to the earlier of (i) the next succeeding date on which
130
Distributions on the Trust Preferred Securities of such Issuer
Trust would be payable but for such deferral and (ii) the date on
which the Property Trustee of such Issuer Trust is required to give
notice to any securities exchange or other applicable self-
regulatory organization or to holders of such Trust Preferred
Securities of the record date or the date such Distributions are
payable].
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the
Corporation maintained for that purpose in the [insert Place of
Payment], in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert--; provided, however, that at
the option of the Corporation payment of interest may be made (i)
by check mailed to the address of the Person entitled thereto as
such address shall appear in the Securities Register or (ii) by
wire transfer in immediately available funds at such place and to
such account as may be designated by the Person entitled thereto as
specified in the Securities Register].
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Debt, and this
Security is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Security, by accepting the
same, (i) agrees to and shall be bound by such provisions, (ii)
authorizes and directs the Trustee on his or her behalf to take
such actions as may be necessary or appropriate to effectuate the
subordination so provided and (iii) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof,
by his or her acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in
the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
131
IN WITNESS WHEREOF, the Corporation has caused this instrument
to be duly executed under its corporate seal.
SOUTH CAROLINA ELECTRIC & GAS COMPANY
By:
Name:
Title:
Attest:
----------------------------------
[Secretary or Assistant Secretary]
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Corporation (herein called the "Securities"), issued and to
be issued in one or more series under the Junior Subordinated
Indenture, dated as of _____________ ___, 1997 (herein called the
"Indenture"), between the Corporation and
, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Corporation, the
Trustee, the holders of Senior Debt and the Holders of the
Securities, and of the terms upon which the Securities are, and are
to be, authenticated and delivered. This Security is one of the
series designated on the face hereof [if applicable, insert--,
limited in aggregate principal amount to $ ].
All terms used in this Security that are defined in the
Indenture [if applicable, insert--or in the Amended and Restated
Trust Agreement, dated as of ___________, 199__ (as modified,
amended or supplemented from time to time, the "Trust Agreement"),
relating to [insert name of Issuer Trust] (the "Issuer Trust")
among the Corporation, as Depositor, the Trustees named therein and
the Holders from time to time of the Trust Securities issued
pursuant thereto, shall have the meanings assigned to them in the
Indenture [if applicable, insert--or the Trust Agreement, as the
case may be].
[If applicable, insert--The Corporation may at any time, at
its option, on or after _________, ____, and subject to the terms
and conditions of Article XI of the Indenture, redeem this Security
in whole at any time or in part from time to time, at the following
Redemption Prices (expressed as percentages of the principal amount
hereof): If redeemed during the 12-month period beginning
_____________,
132
Redemption
Year Price
and thereafter at a Redemption Price equal to 100% of the principal
amount hereof, together, in the case of any such redemption, with
accrued interest [if applicable, insert--, including any Additional
Interest,] to but excluding the date fixed for redemption.]
[If applicable, insert--In addition, upon the occurrence and
during the continuation of a Tax Event in respect of the Issuer
Trust, the Corporation may, at its option, at any time within 90
days of the occurrence and during the continuation of such Tax
Event redeem this Security, in whole but not in part, subject to
the terms and conditions of Article XI of the Indenture, at a
redemption price equal to [insert formula]].
[If the Security is subject to redemption of any kind, insert-
-In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[If applicable, insert--If at any time a Tax Event occurs and
(i) in the opinion of counsel to the Corporation experienced in
such matters, there would in all cases, after effecting the
termination of any Trust which holds this Security and the
distribution of this Security to the holders of the Trust
Securities of such Trust in exchange therefor, be more than an
insubstantial risk that an Adverse Tax Consequence (as defined
below) would continue to exist or (ii) this Security is not held by
a Trust, then the Corporation shall have the right (a) to shorten
the Stated Maturity of this Security to the minimum extent
required, but in any event to a date not earlier than ____________
(the action referred to in this clause (a) being referred to herein
as a "Maturity Advancement"), such that, in the opinion of counsel
to the Corporation experienced in such matters, after advancing the
Stated Maturity, interest paid hereon will be deductible for United
States federal income tax purposes or (b) if in the opinion of
counsel to the Corporation experienced in such matters, there would
in all cases, after effecting a Maturity Advancement, be more than
an insubstantial risk that an Adverse Tax Consequence would
continue to exist to redeem this Security, in whole but not in
part, at any time within 90 days following the occurrence of the
Tax Event at a Redemption Price equal to [insert formula]. "Adverse
Tax Consequence" means any of the following circumstances: (i) a
Trust which holds this Security is, or will be, within 90 days of
the Opinion of Counsel giving rise to a Tax Event, subject to
United States federal income tax with respect to income received or
accrued to this Security, (ii) interest payable by the Corporation
133
on this Security is not, or within 90 days of the date of such
Opinion of Counsel will not be, deductible by the Corporation, in
whole or in part, for United States federal income tax purposes or
(iii) a Trust which holds this Security is, or will be within 90
days of the date of such Opinion of Counsel, subject to more than
a de minimis amount of other taxes, duties or other governmental
charges.]
The Indenture contains provisions for satisfaction and
discharge of the entire indebtedness of this Security upon
compliance by the Corporation with certain conditions set forth in
the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Corporation and the Trustee at any time to enter into
a supplemental indenture or indentures for the purpose of modifying
in any manner the rights and obligations of the Corporation and of
the Holders of the Securities, with the consent of the Holders of
not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting
Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by
the Corporation with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders
of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
[If the Security is not a Discount Security, insert--As
provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to the Securities of this series at
the time Outstanding occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of
this series to be due and payable immediately, by a notice in
writing to the Corporation (and to the Trustee if given by Holders)
[if applicable, insert--, provided that, if upon an Event of
Default, the Trustee or such Holders fail to declare the principal
of all the Outstanding Securities of this series to be immediately
due and payable, the holders of at least 25% in aggregate
Liquidation Amount of the Trust Preferred Securities then
Outstanding shall have the right to make such declaration by a
notice in writing to the Corporation and the Trustee]; and upon any
such declaration the principal amount of and the accrued interest
(including any Additional Interest) on all the Securities of this
series shall become immediately due and payable, provided that the
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payment of principal and interest (including any Additional
Interest) on such Securities shall remain subordinated to the
extent provided in Article XIII of the Indenture.]
[If the Security is a Discount Security, insert--As provided
in and subject to the provisions of the Indenture, if an Event of
Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of this series may
declare an amount of principal of the Securities of this series to
be due and payable immediately, by a notice in writing to the
Corporation (and to the Trustee if given by Holders) [if
applicable, insert--, provided that, if upon an Event of Default,
the Trustee or such Holders fail to declare such principal amount
of the Outstanding Securities of this series to be immediately due
and payable, the holders of at least 25% in aggregate Liquidation
Amount of the Trust Preferred Securities then Outstanding shall
have the right to make such declaration by a notice in writing to
the Corporation and the Trustee]. The principal amount payable upon
such acceleration shall be equal to--insert formula for determining
the amount]. Upon any such declaration, such amount of the
principal of and the accrued interest (including any Additional
Interest) on all the Securities of this series shall become
immediately due and payable, provided that the payment of such
principal and interest (including any Additional Interest) on all
the Securities of this series shall remain subordinated to the
extent provided in Article XIII of the Indenture. Upon payment (i)
of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be
legally enforceable), all of the Corporation's obligations in
respect of the payment of the principal of and premium and
interest, if any, on this Security shall terminate.]
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation
of the Corporation, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest [insert if
applicable--including any Additional Interest)] on this Security at
the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Securities Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Corporation maintained under Section 10.2 of the Indenture for
such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Corporation and
the Securities Registrar duly executed by, the Holder hereof or
135
such Holder's attorney duly authorized in writing, and thereupon
one or more new Securities of this series, of like tenor, of
authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $25 and any integral
multiple of $25 in excess thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Corporation, the Trustee and any agent of the
Corporation or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Corporation and, by its acceptance of this Security or a
beneficial interest herein, the Holder of, and any Person that
acquires a beneficial interest in, this Security agree that for
United States federal, state and local tax purposes it is intended
that this Security constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.4. Additional Provisions Required in Global
Security.
Unless otherwise specified as contemplated by Section 3.1, any
Global Security issued hereunder shall, in addition to the
provisions contained in Sections 2.2 and 2.3, bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
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SECTION 2.5. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By: ___________________________________
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and,
subject to Section 3.3, set forth or determined in the manner
provided in an Officers' Certificate or established in one or more
indentures supplemental hereto, prior to the issuance of Securities
of a series:
(a) the title of the securities of such series, which
shall distinguish the Securities of the series from all other
Securities;
(b) the limit, if any, upon the aggregate principal
amount of the Securities of such series that may be authenticated
and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series
pursuant to Section 3.4, 3.6, 3.7, 9.6 or 11.6 and except for any
Securities that, pursuant to Section 3.3, are deemed never to have
been authenticated and delivered hereunder); provided, however,
that the authorized aggregate principal amount of such series may
be increased above such amount by a Board Resolution to such
effect;
(c) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name
that security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest;
137
(d) the Stated Maturity or Maturities on which the
principal of the Securities of such series is payable or the method
of determination thereof and any dates on which or circumstances
under which, the Corporation shall have the right to extend or
shorten such Stated Maturity or Maturities;
(e) the rate or rates, if any, at which the Securities
of such series shall bear interest, if any, the rate or rates and
extent to which Additional Interest, if any, shall be payable in
respect of any Securities of such series, the date or dates from
which any such interest or Additional Interest shall accrue, the
Interest Payment Dates on which such interest shall be payable, the
right, pursuant to Section 3.12 or as otherwise set forth therein,
of the Corporation to defer or extend an Interest Payment Date and
the Regular Record Date for the interest payable on any Interest
Payment Date or the method by which any of the foregoing shall be
determined;
(f) the place or places where the principal of (and
premium, if any) and interest (including any Additional Interest)
on the Securities of such series shall be payable, the place or
places where the Securities of such series may be presented for
registration of transfer or exchange, any restrictions that may be
applicable to any such transfer or exchange in addition to or in
lieu of those set forth herein and the place or places where
notices and demands to or upon the Corporation in respect of the
Securities of such series may be made;
(g) the period or periods within or the date or dates on
which, if any, the price or prices at which and the terms and
conditions upon which the Securities of such series may be
redeemed, in whole or in part, at the option of the Corporation,
and if other than by a Board Resolution, the manner in which any
election by the Corporation to redeem such Securities shall be
evidenced;
(h) the obligation or the right, if any, of the
Corporation to redeem, repay or purchase the Securities of such
series pursuant to any sinking fund, amortization or analogous
provisions, or at the option of a Holder thereof, and the period or
periods within which, the price or prices at which, the currency or
currencies (including currency unit or units) in which and the
other terms and conditions upon which Securities of the series
shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(i) the denominations in which any Securities of such
series shall be issuable, if other than denominations of $25 and
any integral multiple thereof;
138
(j) if other than Dollars, the currency or currencies
(including any currency unit or units) in which the principal of
(and premium, if any) and interest and Additional Interest, if any,
on the Securities of the series shall be payable, or in which the
Securities of the series shall be denominated and the manner of
determining the equivalent thereof in Dollars for purposes of the
definition of Outstanding;
(k) the additions, modifications or deletions, if any,
in the Events of Default or covenants of the Corporation set forth
herein with respect to the Securities of such series;
(l) if other than the principal amount thereof, the
portion of the principal amount of Securities of such series that
shall be payable upon declaration of acceleration of the Maturity
thereof;
(m) if the principal amount payable at the Stated
Maturity of any Securities of the series will not be determinable
as of any one or more dates prior to the Stated Maturity, the
amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the
Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(n) the additions or changes, if any, to this Indenture
with respect to the Securities of such series as shall be necessary
to permit or facilitate the issuance of the Securities of such
series in bearer form, registrable or not registrable as to
principal, and with or without interest coupons;
(o) any index or indices used to determine the amount of
payments of principal of and premium, if any, on the Securities of
such series or the manner in which such amounts will be determined;
(p) if applicable, that any Securities of the series
shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the respective Depositaries
for such Global Securities, the form of any legend or legends that
shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.4 and any circumstances in
addition to or in lieu of those set forth in Section 3.6 in which
any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons
other than the Depositary for such Global Security or a nominee
thereof;
(q) the appointment of any Paying Agent or agents for
the Securities of such series;
139
(r) the terms of any right to convert or exchange
Securities of such series into any other securities or property of
the Corporation, and the additions or changes, if any, to this
Indenture with respect to the Securities of such series to permit
or facilitate such conversion or exchange;
(s) if such Securities are to be issued to an Issuer
Trust, the form or forms of the Trust Agreement and Guarantee
Agreement relating thereto;
(t) if other than as set forth herein, the relative
degree, if any, to which the Securities of the series shall be
senior to or be subordinated to other series of Securities in right
of payment, whether such other series of Securities are Outstanding
or not;
(u) any addition to or change in the Events of Default
which applies to any Securities of the series and any change in the
right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to
Section 5.2;
(v) any addition to or change in the covenants set forth
in Article X which applies to Securities of the series; and
(w) any other terms of the Securities of such series
(which terms shall not be inconsistent with the provisions of this
Indenture, except as permitted by Section 9.1(f)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided herein or in or pursuant to such Board Resolution and set
forth, or determined in the manner provided, in such Officers'
Certificate or in any indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Corporation and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
The Securities shall be subordinated in right of payment to
Senior Debt as provided in Article XIII.
SECTION 3.2. Denominations.
The Securities of each series shall be in registered form
without coupons and shall be issuable in denominations of $25 and
any integral multiple thereof, unless otherwise specified as
contemplated by Section 3.1.
140
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Corporation
by its Chairman of the Board, its Chief Executive Officer, its
President, its Chief Financial Officer, one of its Vice Presidents
or its Treasurer, under its corporate seal reproduced or impressed
thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Corporation shall bind the Corporation, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities. At any time and
from time to time after the execution and delivery of this
Indenture, the Corporation may deliver Securities of any series
executed by the Corporation to the Trustee for authentication,
together with a Corporation Order for the authentication and
delivery of such Securities and the Trustee in accordance with the
Corporation Order shall authenticate and deliver such Securities.
If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as
permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 2.1,
that such form has been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 3.1, that such terms have been established in conformity
with the provisions of this Indenture; and
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Corporation in the
manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of
the Corporation, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
141
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the
preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver
the Officers' Certificate otherwise required pursuant to Section
3.1 or the Corporation Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by the manual signature of one of its authorized officers,
and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Corporation
and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 3.10, then for all purposes of
this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Corporation may execute, and upon Corporation Order the
Trustee shall authenticate and deliver, temporary Securities that
are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any denomination, substantially of the tenor of the
definitive Securities of such series in lieu of which they are
issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the
Corporation will cause definitive Securities of such series to be
prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the
temporary Securities at the office or agency of the Corporation
142
designated for that purpose without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities,
the Corporation shall execute and the Trustee shall authenticate
and deliver in exchange therefor one or more definitive Securities
of the same series of any authorized denominations having the same
Original Issue Date and Stated Maturity and having the same terms
as such temporary Securities. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such
series.
SECTION 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be
registered in the name of the Depositary designated by the
Corporation for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (i)
such Depositary advises the Trustee in writing that such Depositary
is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Security
and the Corporation is unable to locate a qualified successor, (ii)
the Corporation executes and delivers to the Trustee a Corporation
Order stating that the Corporation elects to terminate the book-
entry system through the Depositary or (iii) there shall have
occurred and be continuing an Event of Default.
(c) If any Global Security is to be exchanged for other
Securities or cancelled in whole, it shall be surrendered by or on
behalf of the Depositary or its nominee to the Securities Registrar
for exchange or cancellation as provided in this Article III. If
any Global Security is to be exchanged for other Securities or
cancelled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security,
then either (i) such Global Security shall be so surrendered for
exchange or cancellation as provided in this Article III or (ii)
the principal amount thereof shall be reduced, subject to Section
3.5(b), or increased by an amount equal to the portion thereof to
be so exchanged or cancelled, or equal to the principal amount of
such other Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment
made on the records of the Securities Registrar, whereupon the
Trustee, in accordance with the Applicable Procedures, shall
instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security by the Depositary, accompanied by
143
registration instructions, the Trustee shall, subject to Section
3.5(b) and as otherwise provided in this Article III, authenticate
and deliver any Securities issuable in exchange for such Global
Security (or any portion thereof) in accordance with the
instructions of the Depositary. The Trustee shall not be liable for
any delay in delivery of such instructions and may conclusively
rely on, and shall be fully protected in relying on, such
instructions.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this
Article III, Section 9.6 or 11.6 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a
nominee thereof.
(e) Securities distributed to holders of Book-Entry Trust
Preferred Securities (as defined in the applicable Trust Agreement)
upon the dissolution of an Issuer Trust shall be distributed in the
form of one or more Global Securities registered in the name of a
Depositary or its nominee, and deposited with the Securities
Registrar, as custodian for such Depositary, or with such
Depositary, for credit by the Depositary to the respective accounts
of the beneficial owners of the Securities represented thereby (or
such other accounts as they may direct). Securities distributed to
holders of Trust Preferred Securities other than Book-Entry Trust
Preferred Securities upon the dissolution of an Issuer Trust shall
not be issued in the form of a Global Security or any other form
intended to facilitate book-entry trading in beneficial interests
in such Securities.
(f) The Depositary or its nominee, as the registered owner of
a Global Security, shall be the Holder of such Global Security for
all purposes under this Indenture and the Securities, and owners of
beneficial interests in a Global Security shall hold such interests
pursuant to the Applicable Procedures. Accordingly, any such
owner's beneficial interest in a Global Security shall be shown
only on, and the transfer of such interest shall be effected only
through, records maintained by the Depositary or its nominee or its
Agent Members. Neither the Trustee nor the Securities Registrar
shall have any liability in respect of any transfers effected by
the Depositary.
(g) The rights of owners of beneficial interests in a Global
Security shall be exercised only through the Depositary and shall
be limited to those established by law and agreements between such
owners and the Depositary and/or its Agent Members.
144
SECTION 3.6. Registration, Transfer and Exchange Generally.
The Corporation shall cause to be kept at the Corporate Trust
Office of the Trustee a register in which, subject to such
reasonable regulations as it may prescribe, the Corporation shall
provide for the registration of Securities and of transfers of
Securities. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities
Registrar" for the purpose of registering Securities and transfers
of Securities as herein provided.
Upon surrender for registration of transfer of any Security at
the offices or agencies of the Corporation designated for that
purpose the Corporation shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series of
any authorized denominations of like tenor and aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for
other Securities of the same series of any authorized
denominations, of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or
agency. Whenever any securities are so surrendered for exchange,
the Corporation shall execute, and the Trustee shall authenticate
and deliver, the Securities that the Holder making the exchange is
entitled to receive.
All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the Corporation
evidencing the same debt and guarantee thereon, and entitled to the
same benefits under this Indenture, as the Securities surrendered
upon such transfer or exchange.
Every Security presented or surrendered for transfer or
exchange shall (if so required by the Corporation or the Trustee)
be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Corporation and the Securities
Registrar, duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer
or exchange of Securities, but the Corporation may require payment
of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any transfer or exchange of
Securities.
Neither the Corporation nor the Trustee shall be required,
pursuant to the provisions of this Section, (i) to issue, register
the transfer of or exchange any Security of any series during a
period beginning at the opening of business 15 days before the day
of selection for redemption of Securities of that series pursuant
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to Article XI and ending at the close of business on the day of
mailing of the notice of redemption or (ii) to register the
transfer of or exchange any Security so selected for redemption in
whole or in part, except, in the case of any such Security to be
redeemed in part, any portion thereof not to be redeemed.
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the Trustee
together with such security or indemnity as may be required by the
Corporation or the Trustee to save each of them harmless, the
Corporation shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series of
like tenor and aggregate principal amount, and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Corporation and to the
Trustee (i) evidence to their satisfaction of the destruction, loss
or theft of any Security and (ii) such security or indemnity as may
be required by them to save each of them and any agent of any of
them harmless, then, in the absence of notice to the Corporation or
the Trustee that such Security has been acquired by a bona fide
purchaser, the Corporation shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same
series of like tenor and aggregate principal amount as such
destroyed, lost or stolen Security, and bearing a number not
contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Corporation in
its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the
Corporation may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Corporation whether or not
the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
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SECTION 3.8. Payment of Interest and Additional Interest;
Interest Rights Preserved.
Interest and Additional Interest on any Security of any series
that is payable, and is punctually paid or duly provided for, on
any Interest Payment Date, shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest in respect of Securities of such series, except that,
unless otherwise provided in the Securities of such series,
interest and any Additional Interest payable on the Stated Maturity
of the principal of a Security shall be paid to the Person to whom
principal is paid. The initial payment of interest on any Security
of any series that is issued between a Regular Record Date and the
related Interest Payment Date shall be payable as provided in such
Security or in the Board Resolution pursuant to Section 3.1 with
respect to the related series of Securities.
Any interest on any Security that is due and payable, but is
not timely paid or duly provided for, on any Interest Payment Date
for Securities of such series (herein called "Defaulted Interest"),
shall forthwith cease to be payable to the registered Holder on the
relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Corporation, at its
election in each case, as provided in Clause (a) or (b) below:
(a) The Corporation may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series in respect of which interest is in default (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Corporation shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Corporation
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest, which shall be not more than 15
days and not less than ten days prior to the date of the proposed
payment and not less than ten days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly
notify the Corporation of such Special Record Date and, in the name
and at the expense of the Corporation, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first class, postage prepaid, to each
Holder of a Security of such series at the address of such Holder
as it appears in the Securities Register not less than ten days
prior to such Special Record Date. The Trustee may, in its
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discretion, in the name and at the expense of the Corporation,
cause a similar notice to be published at least once in a
newspaper, customarily published in the English language on each
Business Day and of general circulation in the Borough of
Manhattan, The City of New York, but such publication shall not be
a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no
longer be payable pursuant to the following Clause (b).
(b) The Corporation may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of
the series in respect of which interest is in default may be listed
and, upon such notice as may be required by such exchange (or by
the Trustee if the Securities are not listed), if, after notice
given by the Corporation to the Trustee of the proposed payment
pursuant to this Clause, such payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, that were
carried by such other Security.
SECTION 3.9. Persons Deemed Owners.
The Corporation, the Trustee and any agent of the Corporation
or the Trustee shall treat the Person in whose name any Security is
registered as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Section 3.8) any
interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the
Corporation or the Trustee nor any agent of the Corporation or the
Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security
held on its behalf by a Depositary shall have any rights under this
Indenture with respect to such Global Security, and such Depositary
may be treated by the Corporation, the Trustee and any agent of the
Corporation or the Trustee as the owner of such Global Security for
all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Corporation, the Trustee or any agent of
the Corporation or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by a
Depositary or impair, as between a Depositary and such holders of
beneficial interests, the operation of customary practices
governing the exercise of the rights of the Depositary (or its
nominee) as Holder of any Security.
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SECTION 3.10. Cancellation.
All Securities surrendered for payment, redemption, transfer
or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and
Securities surrendered directly to the Trustee for any such purpose
shall be promptly canceled by it. The Corporation may at any time
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder that the Corporation may have
acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled
as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities shall be destroyed by the
Trustee and the Trustee shall deliver to the Corporation a
certificate of such destruction.
SECTION 3.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1
for Securities of any series, interest on the Securities of each
series for any partial period shall be computed on the basis of a
360-day year of twelve 30-day months and the actual number of days
elapsed in any partial month in such period, and interest on the
Securities of each series for a full period shall be computed by
dividing the rate per annum by the number of interest periods that
together constitute a full twelve months.
SECTION 3.12. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1
with respect to the Securities of a particular series, so long as
no Event of Default has occurred and is continuing, the Corporation
shall have the right, at any time during the term of such series,
from time to time to defer the payment of interest on such
Securities for such period or periods as may be specified as
contemplated by Section 3.1 (each, an "Extension Period"), during
which Extension Periods the Corporation shall, if so specified as
contemplated by Section 3.1, have the right to make partial
payments of interest on any Interest Payment Date. No Extension
Period shall end on a date other than an Interest Payment Date. At
the end of any such Extension Period the Corporation shall pay all
interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any, at the rate specified for the
Securities of such series to the extent permitted by applicable
law); provided, however, that no Extension Period shall extend
beyond the Stated Maturity of the principal of the Securities of
such series. Prior to the termination of any such Extension
Period, the Corporation may further defer the payment of interest,
provided that no Extension Period shall exceed the period or
periods specified in such Securities, extend beyond the Stated
Maturity of the principal of such Securities or end on a date other
than an Interest Payment Date. Upon the termination of any such
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Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due on any Interest
Payment Date, the Corporation may elect to begin a new Extension
Period, subject to the above conditions. No interest or Additional
Interest shall be due and payable during an Extension Period,
except at the end thereof, but each installment of interest that
would otherwise have been due and payable during such Extension
Period shall bear Additional Interest as and to the extent as may
be specified as contemplated by Section 3.1. The Corporation shall
give the Holders of the Securities of such series and the Trustee
notice of its election to begin any such Extension Period at least
one Business Day prior to the next succeeding Interest Payment Date
on which interest on Securities of such series would be payable but
for such deferral or, with respect to any Securities of a series
issued to an Issuer Trust, so long as any such Securities are held
by such Issuer Trust, at least one Business Day prior to the
earlier of (i) the next succeeding date on which Distributions on
the Trust Preferred Securities of such Issuer Trust would be
payable but for such deferral and (ii) the date on which the
Property Trustee of such Issuer Trust is required to give notice to
any securities exchange or other applicable self-regulatory
organization or to holders of such Trust Preferred Securities of
the record date or the date such Distributions are payable.
The Trustee shall promptly give notice of the Corporation's
election to begin any such Extension Period to the Holders of the
Outstanding Securities of such series.
SECTION 3.13. Right of Set Off.
With respect to the Securities of a series initially issued to
an Issuer Trust, notwithstanding anything to the contrary herein,
the Corporation shall have the right to set off any payment it is
otherwise required to make in respect of any such Security to the
extent the Corporation has theretofore made,or is concurrently on
the date of such payment making, a payment under the Guarantee
Agreement relating to such Security or to a holder of Trust
Preferred Securities pursuant to an action undertaken under Section
5.8 of this Indenture.
SECTION 3.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the
Corporation and, by its acceptance of a Security or a beneficial
interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Security agree that for United States
federal, state and local tax purposes it is intended that such
Security constitutes indebtedness.
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SECTION 3.15. Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1
with respect to the Securities of a particular series, the
Corporation shall have the right to (i) shorten the Stated Maturity
of the principal of the Securities of such series at any time to
any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series and (ii) extend
the Stated Maturity of the principal of the Securities of such
series at any time at its election for one or more periods, but in
no event to a date later than the 49th anniversary of the first
Interest Payment Date following the Original Issue Date of the
Securities of such series; provided that, if the Company elects to
exercise its right to extend the Stated Maturity of the principal
of the Securities of such series pursuant to clause (ii), above, at
the time such election is made and at the time of extension (A) the
Company is not in bankruptcy, otherwise insolvent or in
liquidation, (B) the Company is not in default in the payment of
any interest or principal on such Securities, (C) if the Issuer
Trust has not been liquidated, such Issuer Trust is not in arrears
on payments of Distributions on the Trust Preferred Securities
issued by such Issuer Trust and no deferred Distributions are
accumulated, (D) such Securities are rated not less than BBB- by
S&P or Baa3 by ▇▇▇▇▇'▇ or the equivalent by any other nationally
recognized statistical rating organization and (E) after such
extension, the Securities shall not have a remaining term to
maturity of more than 30 years. In the event the Company elects to
shorten or extend the Stated Maturity of the Securities of such
series, it shall give notice to the Trustee, and the Trustee shall
give notice of such shortening or extension to the Holders, not
less than 30 and not more than 60 days prior to the effectiveness
thereof.
SECTION 3.16. CUSIP Numbers.
The Corporation in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption and other similar or
related materials as a convenience to Holders; provided that any
such notice or other materials may state that no representation is
made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or other
materials and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of
such numbers.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Corporation Request, cease to be of
further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided for
and as otherwise provided in this Section 4.1) and the Trustee, on
demand of and at the expense of the Corporation, shall execute
proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(i) all Securities theretofore authenticated and
delivered (other than (i) Securities that have been
destroyed, lost or stolen and that have been replaced or
paid as provided in Section 3.7 and (ii) Securities for
whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Corporation
and thereafter repaid to the Corporation or discharged
from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered
to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year of the date of deposit, or
(C) are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Corporation,
and the Corporation, in the case of subclause (ii)(A), (B) or (C)
above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the currency or
currencies in which the Securities of such series are payable
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit (in
the case of Securities that have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
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(b) the Corporation has paid or caused to be paid, or made
provision satisfactory to the Trustee for the payment of, all other
sums payable hereunder by the Corporation; and
(c) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Corporation to the Trustee under Section
6.7, the obligations of the Trustee to any Authenticating Agent
under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (ii) of Clause (a) of this Section,
the obligations of the Trustee under Sections 3.10 and 4.2 and the
last paragraph of Section 10.3, and the obligations of the
Corporation and the Trustee under Sections 3.5, 3.6, 3.10 and 9.6,
shall survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.1
shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the
Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest (including any Additional Interest)
for the payment of which such money or obligations have been
deposited with or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default," wherever used herein with respect to the
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body) except as may be specified pursuant to Section 3.1:
(a) default in the payment of any interest upon any
Security of that series, including any Additional Interest in
respect thereof, when it becomes due and payable, and continuance
of such default for a period of 30 days (subject to the deferral of
any due date in the case of an Extension Period); or
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(b) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity;
or
(c) failure on the part of the Corporation duly to
observe or perform any other of the covenants or agreements on the
part of the Corporation in the Securities of that series or in this
Indenture for a period of 90 days after the date on which written
notice of such failure, requiring the Corporation to remedy the
same, shall have been give to the Corporation by the Trustee by
registered or certified mail or to the Corporation and the Trustee
by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series; or
(d) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Corporation a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization of the Corporation under the Bankruptcy Code or any
other similar applicable federal or state law, which decree or
order shall have continued undischarged and unstayed for a period
of 60 days; or the entry of a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of
the Corporation or of its property, or for the winding up or
liquidation of its affairs, which decree or order shall have
continued undischarged and unstayed for a period of 60 days; or
(e) the commencement by the Corporation of voluntary
proceedings to be adjudicated a bankrupt, or consent by the
Corporation to the filing of a bankruptcy proceeding against it, or
the filing by the Corporation of a petition or answer or consent
seeking reorganization under the Bankruptcy Code or any other
similar federal or state law, or consent by the Corporation to the
filing of any such petition, or the consent by the Corporation to
the appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of it or of its property, or the making
by the Corporation of an assignment for the benefit of creditors,
or the admission by the Corporation in writing of its inability to
pay its debts generally as they become due; or
(f) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.2. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.1(d) or 5.1(e)) with respect to Securities
of any series at the time Outstanding occurs and is continuing,
then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if
the Securities of that series are Discount Securities, such portion
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of the principal amount as may be specified in the terms of that
series) of all the Securities of that series to be due and payable
immediately, by a notice in writing to the Corporation (and to the
Trustee if given by Holders), provided that, in the case of the
Securities of a series issued to an Issuer Trust, if, upon an Event
of Default, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of such series fail
to declare the principal of all the Outstanding Securities of such
series to be immediately due and payable, the holders of at least
25% in aggregate Liquidation Amount (as defined in the related
Trust Agreement) of the related series of Trust Preferred
Securities issued by such Issuer Trust then outstanding shall have
the right to make such declaration by a notice in writing to the
Corporation and the Trustee; and upon any such declaration such
principal amount (or specified portion thereof) of and the accrued
interest (including any Additional Interest) on all the Securities
of such series shall become immediately due and payable. If an
Event of Default specified in Section 5.1(d) or 5.1(e) with respect
to Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of such series (or, if the
Securities of such series are Discount Securities, such portion of
the principal amount of such Securities as may be specified by the
terms of that series) shall automatically, and without any
declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable. Payment of principal
and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIII
notwithstanding that such amount shall become immediately due and
payable as herein provided.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders
of a majority in aggregate principal amount of the Outstanding
Securities of that series, by written notice to the Corporation and
the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Corporation has paid or deposited with the
Trustee a sum sufficient to pay:
(i) all overdue installments of interest on all
Securities of such series,
(ii) any accrued Additional Interest on all
Securities of such series,
(iii) the principal of (and premium, if any, on)
any Securities of such series that have become due
otherwise than by such declaration of acceleration and
interest and Additional Interest thereon at the rate
borne by the Securities, and
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(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(b) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of
Securities of that series that has become due solely by such
acceleration, have been cured or waived as provided in Section
5.13.
In the case of Securities of a series initially issued to an
Issuer Trust, if the Holders of such Securities fail to annul such
declaration and waive such default, the holders of a majority in
aggregate Liquidation Amount (as defined in the related Trust
Agreement) of the related series of Trust Preferred Securities
issued by such Issuer Trust then outstanding shall also have the
right to rescind and annul such declaration and its consequences by
written notice to the Corporation and the Trustee, subject to the
satisfaction of the conditions set forth in Clauses (a) and (b)
above of this Section 5.2.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for
Enforcement by
Trustee.
The Corporation covenants that if:
(a) default is made in the payment of any installment of
interest (including any Additional Interest) on any Security of any
series when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of
(and premium, if any, on) any Security at the Maturity thereof, the
Corporation will, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal, including
any sinking fund payment or analogous obligations (and premium, if
any) and interest (including any Additional Interest), and, in
addition thereto, all amounts owing the Trustee under Section 6.7.
If the Corporation fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same
against the Corporation or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Corporation or
any other obligor upon the Securities, wherever situated.
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If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Corporation (or any other
obligor upon the Securities), or the property of the Corporation or
of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal
of the Securities of any series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the
Corporation for the payment of overdue principal (and premium, if
any) or interest (including any Additional Interest)) shall be
entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount
of principal (and premium, if any) and interest
(including any Additional Interest) owing and unpaid in
respect to the Securities and to file such other papers
or documents as may be necessary or advisable and to take
any and all actions as are authorized under the Trust
Indenture Act in order to have the claims of the Holders
and any predecessor to the Trustee under Section 6.7
allowed in any such judicial proceedings; and
(ii) in particular, the Trustee shall be authorized
to collect and receive any moneys or other property
payable or deliverable on any such claims and to
distribute the same in accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) in any such
judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee for distribution in accordance with
Section 5.6, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the
Trustee any amount due to it and any predecessor Trustee under
Section 6.7.
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Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding; provided, however, that
the Trustee may, on behalf of the Holders, vote for the election of
a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
SECTION 5.5. Trustee May Enforce Claim Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
subject to Article XIII and after provision for the payment of all
the amounts owing the Trustee and any predecessor Trustee under
Section 6.7, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has
been recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the
Trustee with respect to a series of Securities pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such
money or property on account of principal (or premium, if any) or
interest (including any Additional Interest), upon presentation of
the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and
any predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the
amounts then due and unpaid upon Securities of such series for
principal (and premium, if any) and interest (including any
Additional Interest) in respect of which or for the benefit of
which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts
due and payable on such series of Securities for principal
(and premium, if any) and interest (including any Additional
Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
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SECTION 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities of any
series shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture or for the appointment
of a receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(b) the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing itself of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders of
Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest; Direct Action by Holders of Trust
Preferred Securities.
Notwithstanding any other provision in this Indenture, the
Holder of any Security of any series shall have the right, which is
absolute and unconditional, to receive payment of the principal of
(and premium, if any) and (subject to Sections 3.8 and 3.12)
interest (including any Additional Interest) on such Security on
the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder. In the case of
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Securities of a series issued to an Issuer Trust, any registered
holder of the series of Trust Preferred Securities issued by such
Issuer Trust shall have the right, upon the occurrence of an Event
of Default described in Section 5.1(a) or 5.1(b), to institute a
suit directly against the Corporation for enforcement of payment to
such holder of principal of (premium, if any) and (subject to
Sections 3.8 and 3.12) interest (including any Additional Interest)
on the Securities having a principal amount equal to the aggregate
Liquidation Amount (as defined in the related Trust Agreement) of
such Trust Preferred Securities held by such holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Trust Preferred
Securities issued by any Issuer Trust has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee, such Holder or such
holder of Trust Preferred Securities, then and in every such case
the Corporation, Trustee, such Holders and such holder of Trust
Preferred Securities shall, subject to any determination in such
proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the
Trustee, such Holder and such holder of Trust Preferred Securities
shall continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section
3.7, no right or remedy herein conferred upon or reserved to the
Trustee or the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right
or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any
Security with respect to the Securities of the related series or
any holder of any Trust Preferred Security to exercise any right or
remedy accruing upon any Event of Default with respect to the
Securities of the related series shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders and the right and remedy given to the
holders of Trust Preferred Securities by Section 5.8 may be
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exercised from time to time, and as often as may be deemed
expedient, by the Trustee, the Holders or the holders of Trust
Preferred Securities, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
(a) such direction shall not be in conflict with any
rule of law or with this Indenture,
(b) the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the
Trustee shall have the right to decline to follow such direction if
a Responsible Officer or Officers of the Trustee shall, in good
faith, determine that the proceeding so directed would be unjustly
prejudicial to the Holders not joining in any such direction or
would involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series affected thereby
and, in the case of any Securities of a series initially issued to
an Issuer Trust, the holders of a majority in aggregate Liquidation
Amount (as defined in the related Trust Agreement) of the Trust
Preferred Securities issued by such Issuer Trust may waive any past
default hereunder and its consequences with respect to such series
except a default:
(a) in the payment of the principal of (or premium, if
any) or interest (including any Additional Interest) on any
Security of such series (unless such default has been cured and the
Corporation has paid to or deposited with the Trustee a sum
sufficient to pay all matured installments of interest (including
any Additional Interest) and all principal of (and premium, if any,
on) all Securities of that series due otherwise than by
acceleration), or
(b) in respect of a covenant or provision hereof that
under Article IX cannot be modified or amended without the consent
of each Holder of any Outstanding Security of such series affected.
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Any such waiver shall be deemed to be on behalf of the Holders
of all the Securities of such series or, in the case of a waiver by
holders of Trust Preferred Securities issued by such Issuer Trust,
by all holders of Trust Preferred Securities issued by such Issuer
Trust.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the
aggregate more than ten percent in aggregate principal amount of
the Outstanding Securities of any series, or to any suit instituted
by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest (including any Additional
Interest) on any Security on or after the respective Stated
Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Corporation covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of,
any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Corporation (to the extent
that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
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ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default,
(i) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions that by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture.
(b) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his
or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct except that
(i) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good
faith in accordance with the direction of Holders
pursuant to Section 5.12 relating to the time, method and
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place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture
with respect to the Securities of a series.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer
of the Trustee of the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit
by mail to all Holders of Securities of such series, as their names
and addresses appear in the Securities Register, notice of such
default, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series,
the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in
the interests of the Holders of Securities of such series; and
provided, further, that, in the case of any default of the
character specified in Section 5.1(c), no such notice to Holders of
Securities of such series shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the
term "default" means any event that is, or after notice or lapse of
time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
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(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, Security or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Corporation
mentioned herein shall be sufficiently evidenced by a Corporation
Request or Corporation Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice
of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, indenture, Security or
other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such inquiry
or investigation, it shall be entitled to examine the books,
records and premises of the Corporation, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 6.4. Not Responsible for Recitals or Issuance of
Securities.
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The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the
statements of the Corporation and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Corporation of the
Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Securities Registrar or any other agent of the Corporation in its
individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Sections 6.8 and 6.13, may otherwise
deal with the Corporation with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Corporation.
SECTION 6.7. Compensation and Reimbursement.
The Corporation agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in such
amounts as the Corporation and the Trustee shall agree from time to
time (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(c) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel) incurred without negligence or bad faith,
arising out of or in connection with the acceptance or
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administration of this trust or the performance of its duties
hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. This
indemnification shall survive the termination of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.1(d) or 5.1(e) occurs, the
expenses and the compensation for the services are intended to
constitute expenses of administration under the Bankruptcy Reform
Act of 1978 or any successor statute.
SECTION 6.8. Disqualification; Conflicting Interests.
(a) The Trustee for the Securities of any series issued
hereunder shall be subject to the provisions of Section 310(b) of
the Trust Indenture Act. Nothing herein shall prevent the Trustee
from filing with the Commission the application referred to in the
second to last paragraph of said Section 310(b).
(b) The Trust Agreement and the Guarantee Agreement with
respect to each Issuer Trust shall be deemed to be specifically
described in this Indenture for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture
Act.
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be:
(a) a corporation organized and doing business under the
laws of the United States of America or of any State or Territory
or the District of Columbia, authorized under such laws to exercise
corporate trust powers and subject to supervision or examination by
federal, state, territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing
business under the laws of a foreign government that is permitted
to act as Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of
such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable
to United States institutional trustees, in either case having a
combined capital and surplus of at least $50,000,000, subject to
supervision or examination by federal or state authority. If such
corporation or other Person publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this
Section 6.9, the combined capital and surplus of such corporation
or other Person shall be deemed to be its combined capital and
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surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.9, it shall resign
immediately in the manner and with the effect hereinafter specified
in this Article VI. Neither the Corporation nor any Person directly
or indirectly controlling, controlled by or under common control
with the Corporation shall serve as Trustee for the Securities of
any series issued hereunder.
SECTION 6.10. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article VI
shall become effective until the acceptance of appointment by the
successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice
thereof to the Corporation. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Corporation.
(d) If at any time:
(i) the Trustee shall fail to comply with Section
6.8 after written request therefor by the Corporation or
by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(ii) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written
request therefor by the Corporation or by any such
Holder, or
(iii) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or
liquidation,
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then, any such case, (A) the Corporation, acting pursuant to the
authority of a Board Resolution, may remove the Trustee with
respect to the Securities of all series issued hereunder or (B)
subject to Section 5.14, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of such Holder
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to the
Securities of all series issued hereunder and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause with respect to the Securities of one or more
series, the Corporation, by a Board Resolution, shall promptly
appoint a successor Trustee with respect to the Securities of that
or those series. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series
shall be appointed by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such series
delivered to the Corporation and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to
the Securities of such series and supersede the successor Trustee
appointed by the Corporation. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the
Corporation or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, subject to
Section 5.14, on behalf of such Holder and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities
of such series.
(f) The Corporation shall give notice of each
resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid,
to the Holders of Securities of such series as their names and
addresses appear in the Securities Register. Each notice shall
include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the
Corporation and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee,
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without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Corporation or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Corporation, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring
Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee and (iii) shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Corporation or any
successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee and the
Corporation shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Trustee
all rights, powers and trusts referred to in Clause (a) or (b) of
this Section, as the case may be.
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(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall
be qualified and eligible under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated, and in
case any Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in
the name of any predecessor Trustee or in the name of such
successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided
anywhere in the Securities or in this Indenture that the
certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against
Corporation.
If and when the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Corporation
(or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of Sections 311(a) and 311(b) of the
Trust Indenture Act.
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities, which shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent. Each Authenticating Agent shall
be acceptable to the Corporation and shall at all times be a
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corporation organized and doing business under the laws of the
United States of America or of any state or territory thereof or
the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by
federal or state authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately in
the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any
corporation succeeding to all or substantially all of the corporate
trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be
otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Corporation. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent
and to the Corporation. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent, which shall be acceptable to the Corporation
and shall give notice of such appointment in the manner provided in
Section 1.6 to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for
such payments, subject to the provisions of Section 6.7.
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If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities of the series designated therein
referred to in the within mentioned Indenture.
Dated:
As Trustee
By:
____________________________________
As
Authenticating Agent
By:
_____________________________________
Authorized Officer
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND CORPORATION
SECTION 7.1. Corporation to Furnish Trustee Names and
Addresses of Holders.
The Corporation will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, on or before June 30 and December 31
of each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of a date not
more than 15 days prior to the delivery thereof, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Corporation of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished, in each
case to the extent such information is in the possession or control
of the Corporation and has not otherwise been received by the
Trustee in its capacity as Securities Registrar.
SECTION 7.2. Preservation of Information, Communications to
Holders.
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(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 7.1 and the names and addresses of Holders
received by the Trustee in its capacity as Securities Registrar.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under
the Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided in Section 312(b) of the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Corporation and the Trustee that none of
the Corporation nor the Trustee nor any agent of any of them shall
be held accountable by reason of the disclosure of information as
to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may
be required pursuant to Section 313 of the Trust Indenture Act, at
the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated
intervals of not more than 12 months shall be transmitted no later
than January 31 in each calendar year.
(c) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
securities exchange upon which any Securities are listed and also
with the Commission. The Corporation will notify the Trustee when
any Securities are listed on any securities exchange.
SECTION 7.4. Reports by Corporation.
The Corporation shall file with the Trustee and with the
Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided in the Trust Indenture Act; provided that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act shall be filed with the Trustee within 15 days after the same
is required to be filed with the Commission. The Corporation also
shall comply with the other provisions of Trust Indenture Act
Section 314(a).
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Corporation May Consolidate, Etc., Only on
Certain Terms.
The Corporation shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Corporation or convey, transfer
or lease its properties and assets substantially as an entirety to
the Corporation, unless:
(a) if the Corporation shall consolidate with or merge
into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Corporation
formed by such consolidation or into which the corporation is
merged or the Person that acquires by conveyance or transfer, or
that leases, the properties and assets of the Corporation
substantially as an entirety shall be a corporation, partnership or
trust organized and existing under the laws of the United States of
America or any State or Territory thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, expressly assume the due and punctual payment of
the principal of (and premium, if any) and interest (including any
Additional Interest) on all the Securities of every series and the
performance of every covenant of this Indenture on the part of the
Corporation to be performed or observed;
(b) immediately after giving effect to such transaction,
no Event of Default, and no event that, after notice or lapse of
time, or both, would constitute an Event of Default, shall have
happened and be continuing; and
(c) the Corporation has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and any
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee, subject to
Section 6.1, may rely upon such Officers' Certificate and Opinion
of Counsel as conclusive evidence that such transaction complies
with this Section 8.1.
SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Corporation, as the
case may be, with or into any other Person, or any conveyance,
transfer or lease by the Corporation of its properties and assets
substantially as an entirety to any Person in accordance with
Section 8.1, the successor corporation formed by such consolidation
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or into which the Corporation is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the
Corporation under this Indenture with the same effect as if such
successor Person had been named as the Corporation herein; and in
the event of any such conveyance, transfer or lease the Corporation
shall be discharged from all obligations and covenants under this
Indenture and the Securities.
Such successor Person may cause to be executed, and may issue
either in its own name or in the name of the Corporation, any or
all of the Securities issuable hereunder that theretofore shall not
have been signed by the Corporation and delivered to the Trustee;
and, upon the order of such successor Person instead of the
Corporation and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities that previously shall
have been signed and delivered by the officers of the Corporation
to the Trustee for authentication pursuant to such provisions and
any Securities that such successor Person thereafter shall cause to
be executed and delivered to the Trustee on its behalf for the
purpose pursuant to such provisions. All the Securities so issued
shall in all respects have the same legal rank and benefit under
this Indenture as the Securities theretofore or thereafter issued
in accordance with the terms of this Indenture.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the
Securities thereafter to be issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders, the Corporation, when
authorized by Board Resolutions, and the Trustee, at any time and
from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(a) to evidence the succession of another Person to the
Corporation and the assumption by any such successor of the
covenants of the Corporation herein and in the Securities
contained; or
(b) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon the Corporation; or
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(c) to provide for the issuance of and establish the
form or terms of Securities of any series as permitted by Sections
2.1 or 3.1; or
(d) to add to the covenants of the Corporation for the
benefit of the Holders of all or any series of Securities (and if
such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of the series specified) or to
surrender any right or power herein conferred upon the Corporation;
or
(e) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if
such additional Events of Default are to be for the benefit of less
than all series of Securities, stating that such additional Events
of Default are expressly being included solely for the benefit of
the series specified); or
(f) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall (i)
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental
indenture that is entitled to the benefit of such provision or (ii)
not apply to any Outstanding Securities; or
(g) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided that such action pursuant to this Clause (g) shall not
adversely affect the interest of the Holders of Securities of any
series in any material respect or, in the case of the Securities of
a series issued to an Issuer Trust and for so long as any of the
corresponding series of Trust Preferred Securities issued by such
Issuer Trust shall remain outstanding, the holders of such Trust
Preferred Securities; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b);
or
(i) to comply with the requirements of the Commission in
order to effect or maintain qualification of this Indenture under
the Trust Indenture Act.
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SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each
series affected by such supplemental indenture, by Act of said
Holders delivered to the Corporation and the Trustee, the
Corporation, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of
such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of
each Outstanding Security of each series affected thereby,
(a) change the Stated Maturity of the principal of, or
any installment of interest (including any Additional Interest) on,
any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of principal of a Discount Security
that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.2, or change the place
of payment where, or the coin or currency in which, any Security or
interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(b) reduce the percentage in aggregate principal amount
of the Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture,
or
(c) modify any of the provisions of this Section,
Section 5.13 or Section 10.5, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Security affected thereby; provided, further, that,
in the case of the Securities of a series issued to an Issuer
Trust, so long as any of the corresponding series of Trust
Preferred Securities issued by such Issuer Trust remains
outstanding, (i) no such amendment shall be made that adversely
affects the holders of such Trust Preferred Securities in any
material respect, and no termination of this Indenture shall occur,
and no waiver of any Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior
consent of the holders of at least a majority of the aggregate
Liquidation Amount (as defined in the related Trust Agreement) of
such Trust Preferred Securities then outstanding unless and until
the principal of (and premium, if any, on) the Securities of such
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series and all accrued and (subject to Section 3.8) unpaid interest
(including any Additional Interest) thereon have been paid in full
and (ii) no amendment shall be made to Section 5.8 of this
Indenture that would impair the rights of the holders of Trust
Preferred Securities issued by any Issuer Trust provided therein
without the prior consent of the holders of each such Trust
Preferred Security then outstanding unless and until the principal
of (and premium, if any, on) the Securities of such series and all
accrued and (subject to Section 3.12) unpaid interest (including
any Additional Interest) thereon have been paid in full.
A supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture that has expressly
been included solely for the benefit of one or more particular
series of Securities or any corresponding series of Trust Preferred
Securities of an Issuer Trust that holds the Securities of any
series, or that modifies the rights of the Holders of Securities of
such series or holders of such Trust Preferred Securities of such
corresponding series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or
holders of Trust Preferred Securities of any other such
corresponding series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture, and that all conditions precedent herein provided for
relating to such action have been complied with. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound
thereby.
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SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION 9.6. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall
if required by the Corporation, bear a notation in form approved by
the Corporation as to any matter provided for in such supplemental
indenture. If the Corporation shall so determine, new Securities of
any series so modified as to conform, in the opinion of the
Corporation, to any such supplemental indenture may be prepared and
executed by the Corporation and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Corporation covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest (including any
Additional Interest) on the Securities of that series in accordance
with the terms of such Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Corporation will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Corporation in respect of the Securities of that series and this
Indenture may be served. The Corporation initially appoints the
Trustee, acting through its Corporate Trust Office, as its agent
for said purposes. The Corporation will give prompt written notice
to the Trustee of any change in the location of any such office or
agency. If at any time the Corporation shall fail to maintain such
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee, and the Corporation hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and
demands.
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The Corporation may also from time to time designate one or
more other offices or agencies where the Securities may be
presented or surrendered for any or all of such purposes, and may
from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve
the Corporation of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such
purposes. The Corporation will give prompt written notice to the
Trustee of any such designation and any change in the location of
any such office or agency.
SECTION 10.3. Money for Security Payments to be Held in
Trust.
If the Corporation shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or
before each due date of the principal of (and premium, if any, on)
or interest on any of the Securities of such series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify
the Trustee of its failure so to act.
Whenever the Corporation shall have one or more Paying Agents,
it will, prior to 10:00 a.m., New York City time, on each due date
of the principal of (or premium, if any) or interest (including any
Additional Interest) on any Securities, deposit with a Paying Agent
a sum sufficient to pay the principal (and premium, if any) or
interest (including any Additional Interest) so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to
such principal (and premium, if any) or interest (including any
Additional Interest), and (unless such Paying Agent is the Trustee)
the Corporation will promptly notify the Trustee of its failure so
to act.
The Corporation will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest (including any
Additional Interest) on the Securities of a series in trust for the
benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the
Corporation (or any other obligor upon such Securities) in the
making of any payment of principal (and premium, if any) or
interest (including any Additional Interest) in respect of any
Security of any Series;
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(c) at any time during the continuance of any default
with respect to a series of Securities, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent with respect to such series; and
(d) comply with the provisions of the Trust Indenture
Act applicable to it as a Paying Agent.
The Corporation may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Corporation Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Corporation or
such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the
Corporation or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Corporation in trust for the payment of the
principal of (and premium, if any) or interest (including any
Additional Interest) on any Security and remaining unclaimed for
two years after such principal (and premium, if any) or interest
has become due and payable shall (unless otherwise required by
mandatory provision of applicable escheat or abandoned or unclaimed
property law) be paid on Corporation Request to the Corporation, or
(if then held by the Corporation) shall (unless otherwise required
by mandatory provision of applicable escheat or abandoned or
unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Corporation for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Corporation as trustee
thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such
repayment, may at the expense of the Corporation cause to be
published once, in a newspaper published in the English language,
customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Corporation.
SECTION 10.4. Statement as to Compliance.
The Corporation shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Corporation ending after
the date hereof, an Officers' Certificate covering the preceding
calendar year, stating whether or not to the best knowledge of the
signers thereof the Corporation is in default in the performance,
observance or fulfillment of or compliance with any of the terms,
provisions, covenants and conditions of this Indenture, and if the
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Corporation shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge. For
the purpose of this Section 10.4, compliance shall be determined
without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
Subject to the rights of holders of Trust Preferred Securities
specified in Section 9.2, if any, the Corporation may omit in any
particular instance to comply with any covenant or condition
provided pursuant to Section 3.1, 9.1(d) or 9.1(e) with respect to
the Securities of any series, if before or after the time for such
compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of
the Corporation in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 10.6. Additional Sums.
In the case of the Securities of a series initially issued to
an Issuer Trust, so long as no Event of Default has occurred and is
continuing and except as otherwise specified as contemplated by
Section 2.1 or Section 3.1, if (i) an Issuer Trust is the Holder of
all of the Outstanding Securities of such series and (ii) a Tax
Event has occurred and is continuing in respect of such Issuer
Trust, the Corporation shall pay to such Issuer Trust (and its
permitted successors or assigns under the related Trust Agreement)
for so long as such Issuer Trust (or its permitted successor or
assignee) is the registered holder of the Outstanding Securities of
such series, such additional sums as may be necessary in order that
the amount of Distributions (including any Additional Amounts (as
defined in such Trust Agreement)) then due and payable by such
Issuer Trust on the related Trust Preferred Securities and Common
Securities that at any time remain outstanding in accordance with
the terms thereof shall not be reduced as a result of any
Additional Taxes arising from such Tax Event (the "Additional
Sums"). Whenever in this Indenture or the Securities there is a
reference in any context to the payment of principal of or interest
on the Securities, such mention shall be deemed to include mention
of the payments of the Additional Sums provided for in this
paragraph to the extent that, in such context, Additional Sums are,
were or would be payable in respect thereof pursuant to the
provisions of this paragraph and express mention of the payment of
Additional Sums (if applicable) in any provisions hereof shall not
be construed as excluding Additional Sums in those provisions
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hereof where such express mention is not made; provided, however,
that the deferral of the payment of interest pursuant to Section
3.12 or the Securities shall not defer the payment of any
Additional Sums that may be due and payable.
SECTION 10.7. Additional Covenants.
The Corporation covenants and agrees with each Holder of
Securities of each series that it shall not (i) declare or pay any
dividends or distributions on, or redeem purchase, acquire or make
a liquidation payment with respect to, any shares of the
Corporation's capital stock or (ii) make any payment of principal
of or interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Corporation (including other
Securities) that rank pari passu in all respects with or junior in
interest to the Securities of such series (other than (a)
repurchases, redemptions or other acquisitions of shares of capital
stock of the Corporation in connection with any employment
contract, benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance
of capital stock of the Corporation (or securities convertible into
or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable
Extension Period, (b) as a result of an exchange or conversion of
any class or series of the Corporation's capital stock (or any
capital stock of a Subsidiary of the Corporation for any class or
series of the Corporation's capital stock or of any class or series
of the Corporation's indebtedness for any class or series of the
Corporation's capital stock, (c) the purchase of fractional
interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a
dividend in connection with any Rights Plan, or the issuance of
rights, stock or other property under any Rights Plan, or the
redemption or repurchase of rights pursuant thereto or (e) any
dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior
to such stock) if at such time (1) there shall have occurred any
event of which the Corporation has actual knowledge that with the
giving of notice or the lapse of time, or both, would constitute an
Event of Default with respect to the Securities of such series, and
which the Corporation shall not have taken reasonable steps to
cure, (2) if the Securities of such series are held by an Issuer
Trust or the Corporation shall be in default with respect to its
payment of any obligations under the Guarantee Agreement relating
to the Trust Preferred Securities issued by such Issuer Trust or
(3) the Corporation shall have given notice of its election to
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begin an Extension Period with respect to the Securities of such
series as provided herein and shall not have rescinded such notice,
or such Extension Period, or any extension thereof, shall be
continuing.
The Corporation also covenants with each Holder of Securities
of a series issued to an Issuer Trust (i) to hold, directly or
indirectly, 100% of the Common Securities of such Issuer Trust,
provided that any permitted successor of the Corporation hereunder
may succeed to the Corporation's ownership of such Common
Securities, (ii) as holder of such Common Securities, not to
voluntarily terminate, wind-up or liquidate such Issuer Trust,
other than (a) in connection with a distribution of the Securities
of such series to the holders of the related Trust Preferred
Securities in liquidation of such Issuer Trust or (b) in connection
with certain mergers, consolidations or amalgamations permitted by
the related Trust Agreement and (iii) to use its reasonable
efforts, consistent with the terms and provisions of such Trust
Agreement, to cause such Issuer Trust to continue not to be taxable
as a corporation for United States federal income tax purposes.
SECTION 10.8. Original Issue Discount.
For each year during which any Securities that were issued
with original issue discount are Outstanding, the Corporation shall
furnish to each Paying Agent in a timely fashion such information
as may be reasonably requested by each Paying Agent in order that
each Paying Agent may prepare the information which it is required
to report for such year on Internal Revenue Service Forms 1096 and
1099 pursuant to Section 6049 of the Internal Revenue Code of 1986,
as amended. Such information shall include the amount of original
issue discount includible in income for each increment of principal
amount at Stated Maturity of outstanding Securities during such
year.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of This Article.
Redemption of Securities of any series (whether by operation
of a sinking fund or otherwise) as permitted or required by any
form of Security issued pursuant to this Indenture shall be made in
accordance with such form of Security and this Article; provided,
however, that if any provision of any such form of Security shall
conflict with any provision of this Article, the provision of such
form of Security shall govern. Except as otherwise set forth in the
form of Security for such series, each Security of a series shall
be subject to partial redemption only in the minimum specified
denomination for the Securities of such series or any integral
multiples thereof.
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SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Corporation to redeem any Securities shall
be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Corporation, the Corporation
shall, at least 45 days prior to the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee), notify the
Trustee and, in the case of Securities of a series held by an
Issuer Trust, the Property Trustee under the related Trust
Agreement, of such date and of the principal amount of Securities
of the applicable series to be redeemed and provide the additional
information required to be included in the notice or notices
contemplated by Section 11.4; provided that in the case of any
series of Securities initially issued to an Issuer Trust, for so
long as such Securities are held by such Issuer Trust, such notice
shall be given not less than 45 nor more than 75 days prior to such
Redemption Date (unless a shorter notice shall be satisfactory to
the Property Trustee under the related Trust Agreement). In the
case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities, the Corporation shall furnish the Trustee with an
Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of
any Security of such series, provided that the unredeemed portion
of the principal amount of any Security shall be in an authorized
denomination (which shall not be less than the minimum authorized
denomination) for such Security.
The Trustee shall promptly notify the Corporation in writing
of the Securities selected for partial redemption and the principal
amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security that has been or is to be
redeemed.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not later than the thirtieth day, and not
earlier than the sixtieth day, prior to the Redemption Date, to
each Holder of Securities to be redeemed, at the address of such
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Holder as it appears in the Securities Register, provided that in
the case of any series of Securities initially issued to an Issuer
Trust, for so long as such Securities are held by such Issuer
Trust, such notice shall be given not less than 45 nor more than 75
days prior to such Redemption Date (unless a shorter notice shall
be satisfactory to the Property Trustee under the related Trust
Agreement).
With respect to Securities of each series to be redeemed, each
notice
of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or, if the Redemption Price
cannot be calculated prior to the time the notice is required to be
sent, the estimate of the Redemption Price together with a
statement that it is an estimate and that the actual Redemption
Price will be calculated on the third Business Day prior to the
Redemption Date (and if an estimate is provided, a further notice
shall be sent of the actual Redemption Price on the date that such
Redemption Price is calculated);
(c) if less than all Outstanding Securities of such
particular series are to be redeemed, the identification (and, in
the case of partial redemption, the respective principal amounts)
of the particular Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price
will become due and payable upon each such Security or portion
thereof, and that interest (including any Additional Interest)
thereon, if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(f) that the redemption is for a sinking fund, if such
is the case;
(g) such other provisions as may be required in respect
of the terms of a particular series of Securities.
Notice of redemption of Securities to be redeemed at the
election of the Corporation shall be given by the Corporation or,
at the Corporation's request, by the Trustee in the name and at the
expense of the Corporation and shall be irrevocable. The notice if
mailed in the manner provided above shall be conclusively presumed
to have been duly given, whether or not the Holder receives such
notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security.
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SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption
Date specified in the notice of redemption given as provided in
Section 11.4, the Corporation will deposit with the Trustee or with
one or more Paying Agents (or if the Corporation is acting as its
own Paying Agent, the Corporation will segregate and hold in trust
as provided in Section 10.3) an amount of money sufficient to pay
the Redemption Price of, and any accrued interest (including any
Additional Interest) on, all the Securities (or portions thereof)
that are to be redeemed on that date.
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in
Section 11.4, the Securities or portion of Securities with respect
to which such notice has been given shall become due and payable on
the date and at the place or places stated in such notice at the
applicable Redemption Price, together with accrued interest
(including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment
in said notice specified, the said Securities or the specified
portions thereof shall be paid and redeemed by the Corporation at
the applicable Redemption Price, together with accrued interest
(including any Additional Interest) to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated
by Section 3.1, installments of interest (including any Additional
Interest) whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of
business on the relevant record dates according to their terms and
the provisions of Section 3.8.
Upon presentation of any Security redeemed in part only, the
Corporation shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Corporation,
a new Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the
unredeemed portion of the Security so presented and having the same
Original Issue Date, Stated Maturity and terms.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal of and
premium, if any, on such Security shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 11.7. Right of Redemption of Securities Initially
Issued to an Issuer Trust.
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In the case of the Securities of a series initially issued to
an Issuer Trust, except as otherwise specified as contemplated by
Section 3.1, the Corporation, at its option, may redeem such
Securities (i) on or after the date specified in such Security, in
whole at any time or in part from time to time or (ii) upon the
occurrence and during the continuation of a Tax Event at any time
within 90 days following the occurrence and during the continuation
of such Tax Event, in whole (but not in part), in each case at a
Redemption Price of 100% unless specified in such Security,
together with accrued interest (including any Additional Interest)
to the Redemption Date.
If less than all the Securities of any such series are to be
redeemed, the aggregate principal amount of such Securities
remaining Outstanding after giving effect to such redemption shall
be sufficient to satisfy any provisions of the Trust Agreement
related to the Issuer Trust to which such Securities were issued,
including any requirement in such Trust Agreement as to the minimum
Liquidation Amount (as defined in such Trust Agreement) of Trust
Preferred Securities that may be held by a holder of Trust
Preferred Securities thereunder.
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of any series except
as otherwise specified as contemplated by Section 3.1 for such
Securities.
The minimum amount of any sinking fund payment provided for by
the terms of any Securities of any series is herein referred to as
a "mandatory sinking fund payment," and any sinking fund payment in
excess of such minimum amount that is permitted to be made by the
terms of such Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of
any Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.2.
Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of such
Securities.
SECTION 12.2. Satisfaction of Sinking Fund Payments with
Securities.
In lieu of making all or any part of a mandatory sinking fund
payment with respect to any Securities of a series in cash, the
Corporation may at its option, at any time no more than 16 months
and no less than 45 days prior to the date on which such sinking
fund payment is due, deliver to the Trustee Securities of such
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series (together with the unmatured coupons, if any, appertaining
thereto) theretofore purchased or otherwise acquired by the
Corporation, except Securities of such series that have been
redeemed through the application of mandatory or optional sinking
fund payments pursuant to the terms of the Securities of such
series, accompanied by a Corporation Order instructing the Trustee
to credit such obligations and stating that the Securities of such
series were originally issued by the Corporation by way of bona
fide sale or other negotiation for value; provided that the
Securities to be so credited have not been previously so credited.
The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the Redemption Price for such
Securities, as specified in the Securities so to be redeemed, for
redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for any series of Securities, the Corporation will deliver to the
Trustee an Officers' Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the
terms of such Securities, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant
to Section 3.1) and the portion thereof, if any, that is to be
satisfied by delivering and crediting Securities pursuant to
Section 12.2 and will also deliver (to the extent not previously
delivered) to the Trustee any Securities to be so delivered. Such
Officers' Certificate shall be irrevocable and upon its delivery
the Corporation shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the succeeding
sinking fund payment date. In the case of the failure of the
Corporation to deliver such Officers' Certificate (or, as required
by this Indenture, the Securities and coupons, if any, specified in
such Officers' Certificate) by the due date therefor, the sinking
fund payment due on the succeeding sinking fund payment date for
such series shall be paid entirely in cash and shall be sufficient
to redeem the principal amount of the Securities of such series
subject to a mandatory sinking fund payment without the right to
deliver or credit securities as provided in Section 12.2 and
without the right to make the optional sinking fund payment with
respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund
payments made with respect to the Securities of any particular
series shall be applied by the Trustee (or by the Corporation if
the Corporation is acting as its own Paying Agent) on the sinking
fund payment date on which such payment is made (or, if such
payment is made before a sinking fund payment date, on the sinking
fund payment date immediately following the date of such payment)
to the redemption of Securities of such series at the Redemption
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Price specified in such Securities with respect to the sinking
fund. Any and all sinking fund moneys with respect to the
Securities of any particular series held by the Trustee (or if the
Corporation is acting as its own Paying Agent, segregated and held
in trust as provided in Section 10.3) on the last sinking fund
payment date with respect to Securities of such series and not held
for the payment or redemption of particular Securities of such
series shall be applied by the Trustee (or by the Corporation if
the Corporation is acting as its own Paying Agent), together with
other moneys, if necessary, to be deposited (or segregated)
sufficient for the purpose, to the payment of the principal of the
Securities of such series at Maturity. The Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 11.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of
the Corporation in the manner provided in Section 11.4. Such notice
having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Section 11.6. On or
before each sinking fund payment date, the Corporation shall pay to
the Trustee (or, if the Corporation is acting as its own Paying
Agent, the Corporation shall segregate and hold in trust as
provided in Section 10.3) in cash a sum in the currency in which
Securities of such series are payable (except as provided pursuant
to Section 3.1) equal to the principal (and premium, if any) and
any interest (including any Additional Interest) accrued to the
Redemption Date for Securities or portions thereof to be redeemed
on such sinking fund payment date pursuant to this Section 12.3.
Neither the Trustee nor the Corporation shall redeem any
Securities of a series with sinking fund moneys or mail any notice
of redemption of Securities of such series by operation of the
sinking fund for such series during the continuance of a default in
payment of interest, if any, on any Securities of such series or of
any Event of Default (other than an Event of Default occurring as
a consequence of this paragraph) with respect to the Securities of
such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee
(or the Corporation, if the Corporation is then acting as its own
Paying Agent) shall redeem such Securities if cash sufficient for
that purpose shall be deposited with the Trustee (or segregated by
the Corporation) for that purpose in accordance with the terms of
this Article XII. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of
Default shall occur and any moneys thereafter paid into such
sinking fund shall, during the continuance of such default or Event
of Default, be held as security for the payment of the Securities
and coupons, if any, of such series; provided, however, that in
case such default or Event of Default shall have been cured or
waived herein, such moneys shall thereafter be applied on the next
sinking fund payment date for the Securities of such series on
which such moneys may be applied pursuant to the provisions of this
Section 12.3.
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ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Debt.
The Corporation covenants and agrees, and each Holder of a
Security, by its acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this
Article, the payment of the principal of (and premium, if any) and
interest (including any Additional Interest) on each and all of the
Securities of each and every series are hereby expressly made
subordinate and subject in right of payment to the prior payment in
full of all Senior Indebtedness of the Corporation.
SECTION 13.2. No Payment When Senior Debt in Default; Payment
Over of Proceeds Upon Dissolution, Etc.
If the Corporation shall default in the payment of any
principal of (or premium, if any) or interest on any of its Senior
Debt when the same becomes due and payable, whether at maturity or
at a date fixed for prepayment or by declaration of acceleration or
otherwise, then, upon written notice of such default to the
Corporation by the holders of Senior Debt or any trustee therefor,
unless and until such default shall have been cured or waived or
shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set off or otherwise) shall be made or
agreed to be made on account of the principal of (or premium, if
any) or interest (including any Additional Interest) on any of the
Securities or in respect of any redemption, repayment, retirement,
purchase or other acquisition of any of the Securities.
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other
similar proceedings relating to the Corporation, its creditors or
its property, (ii) any proceeding for the liquidation, dissolution
or other winding up of the Corporation, voluntary or involuntary,
whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Corporation for the benefit of
creditors or (iv) any other marshalling of the assets of the
Corporation (each such event, if any, herein sometimes referred to
as a "Proceeding"), all Senior Debt of the Corporation (including
any interest thereon accruing after the commencement of any such
proceedings), shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall
be made to any Holder of any of the Securities on account thereof.
Any payment or distribution, whether in cash, securities or other
property (other than securities of the Corporation or any other
corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the
extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities to the payment of all
Senior Debt of the Corporation at the time outstanding and to any
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securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise (but for
these subordination provisions) be payable or deliverable in
respect of the Securities of any series shall be paid or delivered
directly to the holders of Senior Debt of the Corporation in
accordance with the priorities then existing among such holders
until all such Senior Debt (including any interest thereon accruing
after the commencement of any Proceeding) shall have been paid in
full.
In the event of any Proceeding, after payment in full of all
sums owing with respect to the Corporation's Senior Debt the
Holders of the Securities together with the holders of any
obligations of the Corporation ranking on a parity with the
Securities (which for this purpose only shall include the Allocable
Amounts of Senior Subordinated Indebtedness), shall be entitled to
be paid from the remaining assets of the Corporation the amounts at
the time due and owing on account of unpaid principal of (and
premium, if any) and interest on the Securities and such other
obligations before any payment or other distribution, whether in
cash, property or otherwise, shall be made on account of any
capital stock or any obligations of the Corporation ranking junior
to the Securities and such other obligations. If, notwithstanding
the foregoing, any payment or distribution of any character or any
security, whether in cash, securities or other property (other than
securities of the Corporation or any other corporation provided for
by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the
Securities to the payment of all Senior Debt of the Corporation at
the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment),
shall be received by the Trustee or any Holder in contravention of
any of the terms hereof and before all Senior Debt of the
Corporation shall have been paid in full, such payment or
distribution or security shall be received in trust for the benefit
of, and shall be paid over or delivered and transferred to, the
holders of the Senior Debt of the Corporation at the time
outstanding in accordance with the priorities then existing among
such holders for application to the payment of all Senior Debt of
the Corporation remaining unpaid, to the extent necessary to pay
all such Senior Debt of the Corporation remaining unpaid, to the
extent necessary to pay all such Senior Debt of the Corporation in
full. In the event of the failure of the Trustee or any Holder to
endorse or assign any such payment, distribution or security, each
holder of Senior Debt of the Corporation is hereby irrevocably
authorized to endorse or assign the same.
The Trustee and the Holders shall take such action (including,
without limitation, the delivery of this Indenture to an agent for
the holders of Senior Debt of the Corporation or consent to the
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filing of a financing statement with respect hereto) as may, in the
opinion of counsel designated by the holders of a majority in
principal amount of the Senior Debt of the Corporation at the time
outstanding, be necessary or appropriate to assure the
effectiveness of the subordination effected by these provisions.
The provisions of this Section 13.2 shall not impair any
rights, interests, remedies or powers of any secured creditor of
the Corporation in respect of any security interest the creation of
which is not prohibited by the provisions of this Indenture.
The securing of any obligations of the Corporation otherwise
ranking on a parity with the Securities or ranking junior to the
Securities shall not be deemed to prevent such obligations from
constituting, respectively, obligations ranking on a parity with
the Securities or ranking junior to the Securities.
SECTION 13.3. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent (i) the
Corporation at any time, except during the pendency of the
conditions described in the first paragraph of Section 13.2 or of
any Proceeding referred to in Section 13.2, from making payments at
any time of principal of (and premium, if any) or interest
(including any Additional Interest) on the Securities or (ii) the
application by the Trustee of any moneys deposited with it
hereunder to the payment of or on account of the principal of (and
premium, if any) or interest (including any Additional Interest) on
the Securities or the retention of such payment by the Holders, if,
at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the
provisions of this Article.
SECTION 13.4. Subrogation to Rights of Holders of Senior
Debt.
Subject to the payment in full of all amounts due or to become
due on all Senior Debt of the Corporation or the provision for such
payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of the Corporation as
the case may be, the Holders of the Securities shall be subrogated
to the extent of the payments or distributions made to the holders
of such Senior Debt pursuant to the provisions of this Article
(equally and ratably with the holders of all indebtedness of the
Corporation that by its express terms is subordinated to Senior
Debt of the Corporation to substantially the same extent as the
Securities are subordinated to the Senior Debt of the Corporation
and is entitled to like rights of subrogation by reason of any
payments or distributions made to holders of such Senior Debt) to
the rights of the holders of such Senior Debt to receive payments
and distributions of cash, property and securities applicable to
the Senior Debt of the Corporation until the principal of (and
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premium, if any) and interest (including any Additional Interest)
on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the
Senior Debt of the Corporation of any cash, property or securities
to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of
Senior Debt of the Corporation by Holders of the Securities or the
Trustee, shall, as among the Corporation, its creditors other than
holders of its Senior Debt and the Holders of the Securities be
deemed to be a payment or distribution by the Corporation to or on
account of its Senior Debt.
SECTION 13.5. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Debt of the
Corporation on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or
shall (i) impair, as between the Corporation and the Holders of the
Securities the obligations of the Corporation which are absolute
and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest (including any
Additional Interest) on the Securities as and when the same shall
become due and payable in accordance with their terms, (ii) affect
the relative rights against the Corporation of the Holders of the
Securities and creditors of the Corporation other than their rights
in relation to the holders of Senior Debt of the Corporation or
(iii) prevent the Trustee or the Holder of any Security (or to the
extent expressly provided herein, the holder of any Trust Preferred
Security) from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, including filing
and voting claims in any Proceeding, subject to the rights, if any,
under this Article of the holders of Senior Debt of the Corporation
to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof
authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or
effectuate the subordination provided in this Article and appoints
the Trustee his or her attorney-in-fact for any and all such
purposes.
SECTION 13.7. No Waiver of Subordination Provisions.
No right of any present or future holder of any of the
Corporation's Senior Debt to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Corporation or by any
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act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Corporation with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the immediately
preceding paragraph, the holders of the Corporation's Senior Debt
may, at any time and from to time, without the consent of or notice
to the Trustee or the Holders of the Securities of any series
without incurring responsibility to such Holders of the Securities
and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of such Holders of the
Securities to the holders of the Corporation's Senior Debt do any
one or more of the following: (i) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter,
Senior Debt of the Corporation or otherwise amend or supplement in
any manner such Senior Debt or any instrument evidencing the same
or any agreement under which such Senior Debt is outstanding; (ii)
sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt of the
Corporation; (iii) release any Person liable in any manner for the
collection of Senior Debt of the Corporation; and (iv) exercise or
refrain from exercising any rights against the Corporation and any
other Person.
SECTION 13.8. Notice to Trustee.
The Corporation shall give prompt written notice to the
Trustee of any fact known to the Corporation that would prohibit
the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any
other provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts that would prohibit
the making of any payment to or by the Trustee in respect of the
Securities unless and until the Trustee shall have received written
notice thereof from the Corporation or a holder of the
Corporation's Senior Debt, as the case may be, or from any trustee,
agent or representative therefor; provided, however, that if the
Trustee shall not have received the notice provided for in this
Section at least two Business Days prior to the date upon which by
the terms hereof any moneys may become payable for any purpose
(including, the payment of the principal of (and premium, if any,
on) or interest (including any Additional Interest) on any
Security) then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which
they were received and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior
to such date.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a
Person representing himself or herself to be a holder of Senior
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Debt of the Corporation (or a trustee or attorney-in-fact
therefor), to establish that such notice has been given by a holder
of Senior Debt of the Corporation (or a trustee or attorney-in-fact
therefor). In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any
Person as a holder of Senior Debt of the Corporation to participate
in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Debt of the Corporation held by such Person, the extent to which
such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
SECTION 13.9. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Corporation
referred to in this Article, the Trustee, subject to the provisions
of Section 6.1, and the Holders of the Securities shall be entitled
to rely upon any order or decree entered by any court of competent
jurisdiction in which such Proceeding is pending, or a certificate
of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness
of the Corporation the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 13.10. Trustee Not Fiduciary for Holders of Senior
Debt.
The Trustee, in its capacity as trustee under this Indenture,
shall not be deemed to owe any fiduciary duty to the holders of the
Corporation's Senior Debt and shall not be liable to any such
holders if it shall in good faith mistakenly pay over or distribute
to Holders of Securities or to the Corporation or to any other
Person cash, property or securities to which any holders of
Corporation's Senior Debt shall be entitled by virtue of this
Article or otherwise.
SECTION 13.11. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior
Debt of the Corporation that may at any time be held by it, to the
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same extent as any other holder of Senior Debt of the Corporation
and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
SECTION 13.12. Article Applicable to Paying Agents.
If at any time any Paying Agent other than the Trustee shall
have been appointed by the Corporation and be then acting
hereunder, the term "Trustee" as used in this Article shall in such
case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee.
* * * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year
first above written.
SOUTH CAROLINA ELECTRIC & GAS COMPANY
By:__________________________________
Name:
Title:
Address: South Carolina Electric & Gas Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
THE BANK OF NEW YORK,
as Trustee
By:___________________________________
Name:
Title:
Attest:
__________________________________
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