DRAFT
11/08/95
Exhbit 4(g)
GUARANTEE AGREEMENT
Between
Alabama Power Company
(as Guarantor)
and
Chemical Bank
(as Trustee)
dated as of
____________ ___, 1995
CROSS-REFERENCE TABLE1
Section of Section of
Trust Indenture Act Guarantee
of 1929, as amended Agreement
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . 4.01(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . 4.01(c), 2.08
310(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
314(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
314(d) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . 1.01, 2.05, 3.02
314(f) . . . . . . . . . . . . . . . . . . . . . . . 2.01, 3.02
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.07
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.01
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(e) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
316(a) . . . . . . . . . . . . . . . . . . . . . . 5.04(i), 2.06
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
317(a) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(a)
1This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
i
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application . . . . . . . 4
SECTION 2.02. Lists of Holders of Securities . . . . . . . . 4
SECTION 2.03. Reports by the Trustee . . . . . . . . . . . . 4
SECTION 2.04. Periodic Reports to Trustee . . . . . . . . . 4
SECTION 2.05. Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . 5
SECTION 2.06. Events of Default; Waiver . . . . . . . . . . 5
SECTION 2.07. Event of Default; Notice . . . . . . . . . . . 5
SECTION 2.08. Conflicting Interests . . . . . . . . . . . . 5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01. Powers and Duties of the Trustee . . . . . . . 5
SECTION 3.02. Certain Rights of Trustee . . . . . . . . . . 7
SECTION 3.03. Compensation; Fees; Indemnity . . . . . . . . 9
ARTICLE IV
TRUSTEE
SECTION 4.01. Trustee; Eligibility . . . . . . . . . . . . . 9
SECTION 4.02. Appointment, Removal and Resignation
of Trustee . . . . . . . . . . . . . . . . . . 10
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee . . . . . . . . . . . . . . . . . . 11
SECTION 5.02. Waiver of Notice and Demand . . . . . . . . . 11
SECTION 5.03. Obligations Not Affected . . . . . . . . . . . 11
SECTION 5.04. Rights of Holders . . . . . . . . . . . . . . 12
SECTION 5.05. Guarantee of Payment . . . . . . . . . . . . . 13
SECTION 5.06. Subrogation . . . . . . . . . . . . . . . . . 13
SECTION 5.07. Independent Obligations . . . . . . . . . . . 13
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ARTICLE VI
SUBORDINATION
SECTION 6.01. Subordination . . . . . . . . . . . . . . . . 13
ARTICLE VII
TERMINATION
SECTION 7.01. Termination . . . . . . . . . . . . . . . . . 13
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Successors and Assigns . . . . . . . . . . . . 14
SECTION 8.02. Amendments . . . . . . . . . . . . . . . . . . 14
SECTION 8.03. Notices . . . . . . . . . . . . . . . . . . . 14
SECTION 8.04. Benefit . . . . . . . . . . . . . . . . . . . 15
SECTION 8.05. Interpretation . . . . . . . . . . . . . . . . 15
SECTION 8.06. Governing Law . . . . . . . . . . . . . . . . 16
iii
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as
of __________ 1995, is executed and delivered by ALABAMA POWER
COMPANY, an Alabama corporation (the "Guarantor"), and CHEMICAL
BANK, a New York banking corporation, as trustee (the "Trustee"),
for the benefit of the Holders (as defined herein) from time to
time of the Preferred Securities (as defined herein) of ALABAMA
POWER CAPITAL TRUST I, a Delaware statutory business trust (the
"Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of ___________ ___, 1995 among
the Trustee, the other Trustees named therein, and Alabama Power
Company, as Depositor, the Trust is issuing as of the date hereof
$______________ aggregate liquidation amount of its _____% Trust
Preferred Securities (the "Preferred Securities") representing
ownership interests in the Trust and having the terms set forth
in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the
Trust and the proceeds thereof will be used to purchase the
Junior Subordinated Notes (as defined in the Trust Agreement) of
the Guarantor, which will be held by the Trust as trust assets;
and
WHEREAS, as incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires to irrevocably and
unconditionally agree, to the extent set forth herein, to pay to
the Holders the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the payment for
Preferred Securities by each Holder thereof, which payment the
Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time of the Preferred
Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Guarantee
Agreement, the terms set forth below shall, unless the context
otherwise requires, have the following meanings. Capitalized or
otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust
Agreement as in effect on the date hereof.
"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.
"Common Securities" means the securities representing common
ownership interests in the assets of the Trust.
"Event of Default" means a failure by the Guarantor to
perform any of its payment obligations under this Guarantee
Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred
Securities, to the extent not paid or made by or on behalf of the
Trust: (i) any accrued and unpaid distributions that are
required to be paid on such Preferred Securities but if and only
to the extent the Trustee has legally available funds sufficient
to make such payment; (ii) the redemption price, including all
accrued and unpaid distributions to the date of redemption (the
"Redemption Price"), with respect to the Preferred Securities
called for redemption by the Trust but if and only to the extent
that the Trustee has legally available funds sufficient to make
such payment; and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than
in connection with the distribution of Junior Subordinated Notes
to the holders of Trust Securities or the redemption of all of
the Preferred Securities), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid distributions on
the Preferred Securities to the date of payment, to the extent
the Trust has funds legally available therefor, and (b) the
amount of assets of the Trust remaining available for
distribution to Holders in liquidation of the Trust (in either
case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books
and records of the Trust, of any Preferred Securities; provided,
however, that in determining whether the holders of the requisite
percentage of Preferred Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include
the Guarantor or any Affiliate of the Guarantor.
"Indenture" means the Subordinated Note Indenture dated as
of ____________ ___, 1995, among the Guarantor, as Subordinated
Note Issuer, and Chemical Bank, as trustee, as supplemented by
the Supplemental Indenture dated as of __________ ___, 1995, by
and between the Guarantor and Chemical Bank, as Trustee.
"Majority in liquidation amount of Preferred Securities"
means a vote by Holder(s) of Preferred Securities, voting
2
separately as a class, of more than 50% of the liquidation amount
of all Preferred Securities outstanding at the time of
determination.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Guarantor, and delivered to the
Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Person" means any individual, corporation, partnership,
joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the Trustee,
any vice president, any assistant vice president, the secretary,
any assistant secretary, the treasurer, any assistant treasurer,
any senior trust officer, trust officer or assistant trust
officer or any other officer of the Corporate Trust Department 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 that officer's
knowledge of and familiarity with the particular subject.
"Successor Trustee" means a successor Trustee possessing the
qualifications to act as Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
3
"Trustee" means Chemical Bank until a Successor Trustee has
been appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement and thereafter means each such
Successor Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions
of the Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions; and
(b) If and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Section 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 2.02. Lists of Holders of Securities.
(a) The Guarantor shall furnish or cause to be furnished to
the Trustee (a) semiannually, not later than June 1 and December
1 in each year, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders
("List of Holders") as of a date not more than 15 days prior to
the time such list is furnished, and (b) at such other times as
the Trustee may request in writing, within 30 days after the
receipt by the Guarantor of any such request, a List of Holders
as of a date not more than 15 days prior to the time such list is
furnished; provided that, the Guarantor shall not be obligated to
provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders given to the
Trustee by the Guarantor. The Trustee may destroy any List of
Holders previously given to it on receipt of a new List of
Holders.
(b) The Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Trustee. Within 60 days after
May 15 of each year, the Trustee shall provide to the Holders of
the Preferred Securities such reports as are required by Section
313(a) of the Trust Indenture Act, if any, in the form and in the
manner provided by Section 313 of the Trust Indenture Act. The
Trustee shall also comply with the other requirements of Section
313 of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Trustee. The Guarantor
shall provide to the Trustee such documents, reports and
4
information as required by Section 314 (if any) in the form, in
the manner and at the times required by Section 314 of the Trust
Indenture Act, and shall provide, within 120 days after the end
of the Guarantor's fiscal year, the compliance certificate
required by Section 314(a)(4) of the Trust Indenture Act in the
form and in the manner required by such Section.
SECTION 2.05. Evidence of Compliance with Conditions
Precedent. The Guarantor shall provide to the Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Guarantee Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
SECTION 2.06. Events of Default; Waiver. The Holders of a
Majority in liquidation amount of Preferred Securities may, by
vote, on behalf of all of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose
of this Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.07. Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default known
to the Trustee, unless such defaults have been cured before the
giving of such notice, provided that 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.
(b) The Trustee shall not be deemed to have knowledge of
any Event of Default unless the Trustee shall have received
written notice, or a Responsible Officer charged with the
administration of the Trust Agreement shall have obtained written
notice, of such Event of Default.
SECTION 2.08. Conflicting Interests. The Trust Agreement
shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
5
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01. Powers and Duties of the Trustee.
(a) This Guarantee Agreement shall be held by the Trustee
for the benefit of the Holders, and the Trustee shall not
transfer this Guarantee Agreement to any Person except the
Trustee shall assign rights hereunder to a Holder to the extent
such assignment is necessary to exercise such Holder's rights
pursuant to Section 5.04 or to a Successor Trustee upon
acceptance by such Successor Trustee of its appointment to act as
Successor Trustee. The right, title and interest of the Trustee
shall automatically vest in any Successor Trustee, and such
vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Trustee.
(b) If an Event of Default has occurred and is continuing,
the Trustee shall enforce this Guarantee Agreement for the
benefit of the Holders.
(c) The Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default
that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Guarantee Agreement,
and no implied covenants shall be read into this Guarantee
Agreement against the Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section
2.06), the Trustee shall exercise such of the rights and powers
vested in it by this Guarantee Agreement, and use the same degree
of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Guarantee Agreement 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) prior to the occurrence of any Event of
Default and after the curing or waiving of all such Events
of Default that may have occurred:
(A) the duties and obligations of the Trustee
shall be determined solely by the express provisions of
this Guarantee Agreement, and the Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this
Guarantee Agreement; and
(B) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to
6
the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Guarantee Agreement; but in the
case of any such certificates or opinions that by any
provision 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 Guarantee
Agreement;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of
the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts upon which
such judgment was made;
(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 the Holders of a
Majority in liquidation amount of the Preferred Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if the Trustee shall have
reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the
terms of this Guarantee Agreement or adequate indemnity
against such risk or liability is not reasonably assured to
it.
SECTION 3.02. Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties;
7
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever, in the administration of this
Guarantee Agreement, the Trustee shall deem it desirable
that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Trustee
(unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor;
(iv) the Trustee may consult with counsel of its
choice, and the written advice or opinion of such counsel
with respect to legal matters 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
accordance with such advice or opinion; such counsel may be
counsel to the Guarantor or any of its Affiliates and may
include any of its employees; the Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of
competent jurisdiction;
(v) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any
Holder, unless such Holder shall have provided to the
Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the Trustee,
against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Trustee;
provided that nothing contained in this Section 3.02(a)(v)
shall be taken to relieve the Trustee, upon the occurrence
of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee Agreement;
(vi) 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,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit;
(vii) 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
8
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; and
(viii) whenever in the administration of this
Guarantee Agreement the Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Trustee (i)
may request instructions from the Holders, (ii) may refrain
from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the
Trustee shall be construed to be a duty.
SECTION 3.03. Compensation; Fees; Indemnity.
The Guarantor agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder
(which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Guarantee Agreement
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold the Trustee
harmless against, any and all loss, damage, claims, liability or
expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of this Guarantee Agreement, including the costs
and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder.
The provisions of this Section 3.03 shall survive the termination
of this Guarantee Agreement.
9
ARTICLE IV
TRUSTEE
SECTION 4.01. Trustee; Eligibility.
(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section
4.01(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition
so published.
(b) If at any time the Trustee shall cease to be eligible
to so act under Section 4.01(a), the Trustee shall immediately
resign in the manner and with the effect set out in Section
4.02(c).
(c) If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust
Indenture Act, subject to the rights of the Trustee under the
penultimate paragraph thereof.
SECTION 4.02. Appointment, Removal and Resignation of
Trustee.
(a) Subject to Section 4.02(b), the Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Trustee shall not be removed until a Successor
Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Trustee and
delivered to the Guarantor.
10
(c) The Trustee appointed to office shall hold office until
a Successor Trustee shall have been appointed or until its
removal or resignation. The Trustee may resign from office
(without need for prior or subsequent accounting) by an
instrument in writing executed by the Trustee and delivered to
the Guarantor, which resignation shall not take effect until a
Successor Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor
Trustee and delivered to the Guarantor and the resigning Trustee.
(d) If no Successor Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60
days after delivery to the Guarantor of an instrument of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for appointment of a Successor Trustee.
Such court may thereupon, after prescribing such notice, if any,
as it may deem proper, appoint a Successor Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore
paid by the Trust), as and when due, regardless of any defense,
right of set-off or counterclaim which the Guarantor may have or
assert against any person. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing
the Trust to pay such amounts to the Holders.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor
hereby waives notice of acceptance of this Guarantee Agreement
and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a
proceeding first against the Trust or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices
and demands.
SECTION 5.03. Obligations Not Affected. The obligation of
the Guarantor to make the Guarantee Payments under this Guarantee
Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Trust of any
express or implied agreement, covenant, term or condition
relating to the Preferred Securities to be performed or observed
by the Trust;
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(b) the extension of time for the payment by the Trust of
all or any portion of the Distributions, Redemption Price,
Liquidation Distribution or any other sums payable under the
terms of the Preferred Securities or the extension of time for
the performance of any other obligation under, arising out of, or
in connection with, the Preferred Securities (other than an
extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from
the extension of any interest payment period on the Junior
Subordinated Notes permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to
the terms of the Preferred Securities, or any action on the part
of the Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Trust or any of the assets of
the Trust;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.03 that the
obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice
to, or obtain consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be
deposited with the Trustee to be held for the benefit of the
Holders; (ii) the Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a
Majority in liquidation amount of the Preferred Securities have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee in respect of
this Guarantee Agreement or exercising any trust or power
conferred upon the Trustee under this Guarantee Agreement,
provided that such direction shall not be in conflict with any
rule of law or with this Guarantee Agreement, and could not
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involve the Trustee in personal liability in circumstances where
reasonable indemnity would not be adequate; and (iv) if the
Trustee fails to enforce this Guarantee Agreement as above
provided, any Holder may, after a period of 30 days has elapsed
from such Holder's written request to the Trustee to enforce this
Guarantee Agreement and provision of indemnity satisfactory to
the Trustee, institute a legal proceeding directly against the
Guarantor to enforce its rights under this Guarantee Agreement,
without first instituting a legal proceeding against the Trustee
or any other person or entity; it being understood and intended
that no one or more of such Holders shall have any right in any
manner whatsoever by virtue of, or by availing of, any provision
of this Guarantee Agreement to affect, disturb or prejudice the
rights of any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such Holders or
to enforce any right under this Guarantee Agreement, except in
the manner herein provided and for the equal and ratable benefit
of all of such Holders.
SECTION 5.05. Guarantee of Payment. This Guarantee
Agreement creates a guarantee of payment and not of collection.
This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication).
SECTION 5.06. Subrogation. The Guarantor shall be
subrogated to all (if any) rights of the Holders against the
Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that
the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise
any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a
result of payment under this Guarantee Agreement, if, at the time
of any such payment, any amounts of Guarantee Payments are due
and unpaid under this Guarantee Agreement. If any amount shall
be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders
and to pay over such amount to the Holders.
SECTION 5.07. Independent Obligations. The Guarantor
acknowledges that its obligations hereunder are independent of
the obligations of the Trust with respect to the Preferred
Securities and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to
the terms of this Guarantee Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through
(g), inclusive, of Section 5.03 hereof.
ARTICLE VI
SUBORDINATION
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SECTION 6.01. Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank
(i) subordinate and junior in right of payment to all other
liabilities of the Guarantor, including the Junior Subordinated
Notes, except those obligations or liabilities made pari passu or
subordinate by their terms, (ii) pari passu with the most senior
preferred or preference stock now or hereafter issued by the
Guarantor and with any guarantee now or hereafter entered into by
the Guarantor in respect of any preferred or preference
securities of any Affiliate of the Guarantor, and (iii) senior to
all common stock of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Guarantee Agreement shall
terminate and be of no further force and effect upon: (i) full
payment of the Redemption Price of all Preferred Securities, (ii)
the distribution of Junior Subordinated Notes to the Holders in
exchange for all of the Preferred Securities, or (iii) upon full
payment of the amounts payable in accordance with the Trust
Agreement upon liquidation of the Trust. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective
or will be reinstated, as the case may be, if at any time any
Holder must restore payment of any sums paid with respect to
Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the
successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders then
outstanding. Except in connection with a consolidation, merger,
conveyance, transfer, or lease involving the Guarantor that is
permitted under Article Eight of the Indenture, the Guarantor
shall not assign its obligations hereunder.
SECTION 8.02. Amendments. Except with respect to any
changes which do not materially and adversely affect the rights
of Holders (in which case no consent of Holders will be
required), this Guarantee Agreement may only be amended with the
prior approval of the Holders of not less than 66-2/3% in
liquidation amount of all the outstanding Preferred Securities.
The provisions of Article Six of the Trust Agreement concerning
meetings of Holders shall apply to the giving of such approval.
SECTION 8.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
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be in writing, duly signed by the party giving such notice, and
delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth
below or such other address as the Guarantor may give notice of
to the Trustee and the Holders:
Alabama Power Company
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Corporate Secretary
with copy to:
Southern Company Services, Inc.
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Finance Department
(b) if given to the Trust, in care of the Trustee, or to
the Trustee at the Trust's (and the Trustee's) address set forth
below or such other address as the Trustee on behalf of the
Trust may give notice to the Holders:
Alabama Power Capital Trust I
c/o Chemical Bank
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trustee Administration Department
(c) if given to any Holder, at the address set forth on the
books and records of the Trust.
All notices hereunder shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 8.04. Benefit. This Guarantee Agreement is solely
for the benefit of the Holders and, subject to Section 3.01(a),
is not separately transferable from the Preferred Securities.
SECTION 8.05. Interpretation. In this Guarantee Agreement,
unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but
not defined in the preamble hereto have the respective meanings
assigned to them in Section 1.01;
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(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles
and Sections are to Articles and Sections of this Guarantee
Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise
defined in this Guarantee Agreement or unless the context
otherwise requires;
(f) a reference to the singular includes the plural and
vice versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 8.06. Governing Law. THIS GUARANTEE AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. THE GUARANTOR HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY
COURT IN THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF
NEW YORK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND
RELATED TO OR IN CONNECTION WITH THIS GUARANTEE AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED THEREBY, AND TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE GUARANTOR HEREBY WAIVES AND AGREES NOT TO
ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH
SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION
OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE
OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS
GUARANTEE AGREEMENT OR ANY DOCUMENT OR ANY INSTRUMENT REFERRED TO
HEREIN OR THE SUBJECT MATTER HEREOF MAY NOT BE LITIGATED IN OR BY
SUCH COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
GUARANTOR AGREES NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY
REVIEW OF THE JUDGMENT OF ANY SUCH COURT BY ANY OTHER COURT WHICH
MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT. THE
GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY
CERTIFIED OR REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET FORTH
IN THIS GUARANTEE AGREEMENT OR ANY METHOD AUTHORIZED BY THE LAWS
OF NEW YORK.
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.
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THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
ALABAMA POWER COMPANY
By:
Name:
Title:
CHEMICAL BANK
By:
Name:
Title:
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