Exhibit D
ALABAMA POWER CAPITAL TRUST I
AMENDED AND RESTATED
TRUST AGREEMENT
among
ALABAMA POWER COMPANY, as Depositor,
CHEMICAL BANK, as Property Trustee
CHEMICAL BANK DELAWARE, as Delaware Trustee
and
XXXXXXX X. XXXXX, XX. and J. XXXXX XXXXXXX,
as Administrative Trustees
Dated as of January 1, 1996
ALABAMA POWER CAPITAL TRUST I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . 8.07
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 8.07
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 8.08
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
Section 313(a) . . . . . . . . . . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . 8.14(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 8.14(a)
(d) . . . . . . . . . . . . . . . . . . . 8.14(a), 8.14(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . 8.15
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . 8.15, 8.16
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 8.16
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . 8.16
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 8.16
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . 8.01
(b) . . . . . . . . . . . . . . . . . . . . . 8.02, 8.14(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . 8.01, 8.03
(e) . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . 8.19
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . 8.19
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 317(a)(1) . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . 10.10
Note: This Cross-Reference Table does not constitute part
of the Trust Agreement and shall not affect the interpretation of
any of its terms and provisions.
TABLE OF CONTENTS
ARTICLE I
Defined Terms . . . . . . . . . . . 2
Section 1.01 Definitions . . . . . . . . . . . . . . . . . 2
ARTICLE II
Establishment of the Trust . . . . . . . 10
Section 2.01 Name . . . . . . . . . . . . . . . . . . . . . 10
Section 2.02 Offices of the Trustees; Principal Place of
Business . . . . . . . . . . . . . . . . . . . 11
Section 2.03 Initial Contribution of Trust Property;
Organizational Expenses . . . . . . . . . . . 11
Section 2.04 Issuance of the Preferred Securities . . . . . 11
Section 2.05 Subscription and Purchase of Junior
Subordinated Notes; Issuance of the Common
Securities . . . . . . . . . . . . . . . . . . 11
Section 2.06 Declaration of Trust . . . . . . . . . . . . . 12
Section 2.07 Authorization to Enter into Certain
Transactions . . . . . . . . . . . . . . . . . 12
Section 2.08 Assets of Trust . . . . . . . . . . . . . . . 17
Section 2.09 Title to Trust Property . . . . . . . . . . . 17
Section 2.10 Mergers and Consolidations of the Trust . . . 18
ARTICLE III
Payment Account . . . . . . . . . . 19
Section 3.01 Payment Account . . . . . . . . . . . . . . . 19
ARTICLE IV
Distributions; Redemption . . . . . . . . 19
Section 4.01 Distributions . . . . . . . . . . . . . . . . 19
Section 4.02 Redemption . . . . . . . . . . . . . . . . . . 20
i
Section 4.03 Subordination of Common Securities . . . . . . 23
Section 4.04 Payment Procedures . . . . . . . . . . . . . . 23
Section 4.05 Tax Returns and Reports . . . . . . . . . . . 23
ARTICLE V
Trust Securities Certificates . . . . . . . 24
Section 5.01 Initial Ownership . . . . . . . . . . . . . . 24
Section 5.02 The Trust Securities Certificates . . . . . . 24
Section 5.03 Authentication of Trust Securities
Certificates . . . . . . . . . . . . . . . . . 24
Section 5.04 Registration of Transfer and Exchange of
Preferred Securities Certificates . . . . . . 25
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates . . . . . . . . . . . 25
Section 5.06 Persons Deemed Securityholders . . . . . . . . 26
Section 5.07 Access to List of Securityholders' Names and
Addresses . . . . . . . . . . . . . . . . . . 26
Section 5.08 Maintenance of Office or Agency . . . . . . . 27
Section 5.09 Appointment of Paying Agent . . . . . . . . . 27
Section 5.10 Ownership of Common Securities by Depositor . 28
Section 5.11 Book-Entry Preferred Securities Certificates;
Common Securities Certificate . . . . . . . . 28
Section 5.12 Notices to Clearing Agency . . . . . . . . . . 29
Section 5.13 Definitive Preferred Securities Certificates . 29
Section 5.14 Rights of Securityholders . . . . . . . . . . 30
ARTICLE VI
Acts of Securityholders; Meetings; Voting . . . . 30
Section 6.01 Limitations on Voting Rights . . . . . . . . . 30
Section 6.02 Notice of Meetings . . . . . . . . . . . . . . 31
Section 6.03 Meetings of Preferred Securityholders . . . . 32
ii
Section 6.04 Voting Rights . . . . . . . . . . . . . . . . 32
Section 6.05 Proxies, etc. . . . . . . . . . . . . . . . . 32
Section 6.06 Securityholder Action by Written Consent . . . 33
Section 6.07 Record Date for Voting and Other Purposes . . 33
Section 6.08 Acts of Securityholders . . . . . . . . . . . 33
Section 6.09 Inspection of Records . . . . . . . . . . . . 34
ARTICLE VII
Representations and Warranties of the Trustees . . 34
Section 7.01 Representations and Warranties of the
Trustee . . . . . . . . . . . . . . . . . . . 34
ARTICLE VIII
The Trustees . . . . . . . . . . . 36
Section 8.01 Certain Duties and Responsibilities . . . . . 36
Section 8.02 Notice of Defaults . . . . . . . . . . . . . . 36
Section 8.03 Certain Rights of Property Trustee . . . . . . 36
Section 8.04 Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . 38
Section 8.05 May Hold Securities . . . . . . . . . . . . . 38
Section 8.06 Compensation; Fees; Indemnity . . . . . . . . 38
Section 8.07 Trustees Required; Eligibility . . . . . . . . 39
Section 8.08 Conflicting Interests . . . . . . . . . . . . 39
Section 8.09 Co-Trustees and Separate Trustee . . . . . . . 40
Section 8.10 Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . 41
Section 8.11 Acceptance of Appointment by Successor . . . . 42
Section 8.12 Merger, Conversion, Consolidation or
Succession
to Business . . . . . . . . . . . . . . . . . 43
Section 8.13 Preferential Collection of Claims Against
iii
Depositor or Trust . . . . . . . . . . . . . . 43
Section 8.14 Reports by Property Trustee . . . . . . . . . 44
Section 8.15 Reports to the Property Trustee . . . . . . . 44
Section 8.16 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . 44
Section 8.17 Number of Trustees . . . . . . . . . . . . . . 45
Section 8.18 Delegation of Power . . . . . . . . . . . . . 45
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders . . . . . . . . . . . . . . . 45
ARTICLE IX
Termination and Liquidation . . . . . . . 46
Section 9.01 Termination Upon Expiration Date . . . . . . . 46
Section 9.02 Early Termination . . . . . . . . . . . . . . 46
Section 9.03 Termination . . . . . . . . . . . . . . . . . 47
Section 9.04 Liquidation . . . . . . . . . . . . . . . . . 47
Section 9.05 Bankruptcy . . . . . . . . . . . . . . . . . . 48
ARTICLE X
Miscellaneous Provisions . . . . . . . . 49
Section 10.01 Guarantee by the Depositor . . . . . . . . . . 49
Section 10.02 Limitation of Rights of Securityholders . . . 49
Section 10.03 Amendment . . . . . . . . . . . . . . . . . . 49
Section 10.04 Separability . . . . . . . . . . . . . . . . . 51
Section 10.05 Governing Law . . . . . . . . . . . . . . . . 51
Section 10.06 Successors . . . . . . . . . . . . . . . . . . 51
Section 10.07 Headings . . . . . . . . . . . . . . . . . . . 51
Section 10.08 Notice and Demand . . . . . . . . . . . . . . 51
Section 10.09 Agreement Not to Petition . . . . . . . . . . 52
iv
Section 10.10 Conflict with Trust Indenture Act . . . . . . 52
EXHIBIT A Restated Certificate of Trust
EXHIBIT B Form of Certificate Depository Agreement
EXHIBIT C Form of Common Securities Certificate
EXHIBIT D Form of Expense Agreement
EXHIBIT E Form of Preferred Securities Certificate
v
AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of
January 1, 1996, by and among (i) Alabama Power Company, an
Alabama corporation (the "Depositor" or the "Company"), (ii)
Chemical Bank, a banking corporation duly organized and existing
under the laws of New York, as trustee (the "Property Trustee"
and, in its separate corporate capacity and not in its capacity
as Trustee, the "Bank"), (iii) Chemical Bank Delaware, a banking
corporation duly organized under the laws of Delaware, as
Delaware trustee (the "Delaware Trustee" and, in its separate
corporate capacity and not in its capacity as Delaware Trustee,
the "Delaware Bank"), and (iv) Xxxxxxx X. Xxxxx, Xx., an
individual, and J. Xxxxx XxXxxxx, an individual, as administra-
tive trustees (each an "Administrative Trustee" and together the
"Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees referred to collectively
as the "Trustees") and (v) the several Holders, as hereinafter
defined.
WITNESSETH:
WHEREAS, the Depositor and the Delaware Trustee have
heretofore duly declared and established a business trust
pursuant to the Delaware Business Trust Act by the entering into
of that certain Trust Agreement, dated as of November 8, 1995
(the "Original Trust Agreement"), and by the execution and filing
by the Delaware Trustee with the Secretary of State of the State
of Delaware of the Certificate of Trust, dated November 8, 1995;
and
WHEREAS, the parties hereto desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the addition of the Bank,
Xxxxxxx X. Xxxxx, Xx. and J. Xxxxx XxXxxxx as trustees of the
Trust, (ii) the acquisition by the Trust from the Depositor of
all of the right, title and interest in the Junior Subordinated
Notes, (iii) the issuance of the Common Securities by the Trust
to the Depositor, and (iv) the issuance and sale of the Preferred
Securities by the Trust pursuant to the Underwriting Agreement.
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other party and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
1
ARTICLE I
Defined Terms
Section 1.01 Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities
of a given Liquidation Amount and/or a given period, an amount
equal to the Additional Interest (as defined in clause (ii) of
the definition of "Additional Interest" in the Subordinated
Indenture) paid by the Depositor on a Like Amount of Junior
Subordinated Notes for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative
Trustees of the Trust formed hereunder and not in their
individual capacities, or such trustee's successor(s) in interest
in such capacity, or any successor "Administrative Trustee"
appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
2
"Bank" has the meaning specified in the preamble to this
Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt
or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under federal
bankruptcy law or any other applicable federal or state law,
or appointing a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of such Person or of
any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of a decree or order unstayed and in effect for
a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or the consent by it
to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under federal
bankruptcy law or any other applicable federal or state law,
or the consent by it to the filing of such petition or to
the appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such Person or
of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of action by
such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section
10.09.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have
been duly adopted by the Depositor's Board of Directors or a duly
authorized committee thereof and to be in full force and effect
on the date of such certification, and delivered to the Trustees.
"Book-Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates,
ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (i) a Saturday or a
Sunday, (ii) a day on which banks in Wilmington, Delaware or New
York, New York are authorized or obligated by law or executive
order to remain closed or (iii) a day on which the Corporate
3
Trust Office or the Indenture Trustee's principal corporate trust
office is closed for business.
"Certificate Depository Agreement" means the agreement among
the Trust, the Depositor and The Depository Trust Company, as the
initial Clearing Agency, dated as of the Issue Date, relating to
the Preferred Securities Certificates, substantially in the form
attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository Trust Company
will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to
time a Clearing Agency effects book-entry transfers and pledges
of securities deposited with the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of
this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of a Common Security or Securities,
substantially in the form attached as Exhibit C.
"Company" means Alabama Power Company.
"Corporate Trust Office" means the office of the Property
Trustee located in New York, New York at which its corporate
trust business shall be principally administered.
"Definitive Preferred Securities Certificates" means either
or both (as the context requires) of (i) Preferred Securities
Certificates issued in certificated, fully registered form as
provided in Section 5.11(a) and (ii) Preferred Securities
Certificates issued in certificated, fully registered form as
provided in Section 5.13.
4
"Delaware Bank" has the meaning specified in the preamble to
this Trust Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12
of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the commercial bank or trust
company or any other person identified as the "Delaware Trustee"
and has the meaning specified in the preamble to this Trust
Agreement solely in its capacity as Delaware Trustee of the Trust
formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any
successor Delaware Trustee appointed as herein provided.
"Depositor" means Alabama Power Company, in its capacity as
"Depositor" under this Trust Agreement.
"Distribution Date" has the meaning specified in Section
4.01(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Event of Default" means 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):
(i) the occurrence of an Indenture Event of Default;
or
(ii) default by the Property Trustee in the payment of
any Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days; or
(iii) default by the Property Trustee in the payment of
any Redemption Price of any Trust Security when it becomes
due and payable; or
(iv) default in the performance, or breach, of any
covenant or warranty of the Trustees in this Trust Agreement
(other than a covenant or warranty a default in whose
performance or breach is dealt with in clause (ii) or (iii)
above) and continuation of such default or breach for a
period of 60 days after there has been given, by registered
or certified mail, to the Trustees by the Holders of at
least 10% in Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or
5
breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect
to the Trustees.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Company and the Trust, substantially in
the form attached as Exhibit D, as amended from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Company and Chemical Bank, as Guarantee Trustee,
contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred
Securities, as amended from time to time.
"Indenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Indenture Redemption Date" means "Redemption Date," as
defined in the Subordinated Indenture.
"Indenture Trustee" means the trustee under the Subordinated
Indenture.
"Issue Date" means the date of the delivery of the Trust
Securities.
"Junior Subordinated Notes" means the $100,000,000 aggregate
principal amount of the Depositor's Series A 7.375% Junior
Subordinated Notes, due March 31, 2026, issued pursuant to the
Subordinated Indenture.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a
Liquidation Amount equal to the principal amount of Junior
Subordinated Notes to be contemporaneously redeemed in accordance
with the Subordinated Indenture and the proceeds of which will be
used to pay the Redemption Price of such Trust Securities and
(ii) Junior Subordinated Notes having a principal amount equal to
the Liquidation Amount of the Trust Securities of the Holder to
whom such Junior Subordinated Notes are distributed.
6
"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Junior
Subordinated Notes are to be distributed to Holders of Trust
Securities in connection with a dissolution and liquidation of
the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in
Section 9.05.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice 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
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. An Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust 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 is necessary, in such
officer's opinion, 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.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Trustees or the Depositor, but
not an employee of the Trust or the Trustees, and who shall be
reasonably acceptable to the Property Trustee. Any Opinion of
Counsel pertaining to federal income tax matters may rely on
published rulings of the Internal Revenue Service.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
7
Securities theretofore authenticated and delivered under this
Trust Agreement, except:
(i) Preferred Securities theretofore cancelled by
the Administrative Trustees or delivered to the
Administrative Trustees for cancellation;
(ii) Preferred Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred Securities;
provided that if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(iii) Preferred Securities which have been paid
pursuant to Section 5.05 or in exchange for or in lieu of
which other Preferred Securities have been authenticated and
delivered pursuant to this Trust Agreement;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, the Holder of the Common
Securities, any Trustee or any Affiliate of the Depositor or any
Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Preferred Securities which such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at
any time when all of the outstanding Preferred Securities are
owned by the Depositor, the Holder of the Common Securities, one
or more Trustees and/or any such Affiliate. Preferred Securities
so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with
respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the
records of the Clearing Agency or, if a Clearing Agency
Participant is not the Owner, then as reflected in the records of
a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such
Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be the
Property Trustee.
8
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee for
the benefit of the Securityholders in which all amounts paid in
respect of the Junior Subordinated Notes will be held and from
which the Trustee shall make payments to the Securityholders in
accordance with Section 4.01.
"Person" means an individual, corporation, partnership,
joint venture, trust, limited liability company or corporation,
unincorporated organization or government or any agency or
political subdivision thereof.
"Preferred Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount
of $25 and having rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of a Preferred Security or Securities,
substantially in the form attached as Exhibit E.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to
this Trust Agreement solely in its capacity as Property Trustee
of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such
capacity, or any successor "Property Trustee" as herein provided.
"Redemption Date" means, with respect to any Trust Security
to be redeemed, the date fixed for such redemption by or pursuant
to this Trust Agreement; provided that each Indenture Redemption
Date shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such
Trust Security, plus accrued and unpaid Distributions to such
date.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities
Register; any such Person shall be deemed to be a beneficial
owner within the meaning of the Delaware Business Trust Act.
9
"Subordinated Indenture" means the Indenture, dated as of
January 1, 1996, between the Depositor and the Indenture Trustee,
as supplemented by the Supplemental Indenture.
"Supplemental Indenture" means the First Supplemental
Indenture, dated as of January 1, 1996, by and between the
Depositor and the Indenture Trustee.
"Trust" means the Delaware business trust continued hereby
and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any modification, amendment or
supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trustees" means the Persons identified as "Trustees" in the
preamble to this Trust Agreement solely in their capacities as
Trustees of the Trust formed hereunder and not in their
individual capacities, or their successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trust Property" means (i) the Junior Subordinated Notes,
(ii) any cash on deposit in, or owing to, the Payment Account,
and (iii) all proceeds and rights in respect of the foregoing and
any other property and assets for the time being held or deemed
to be held by the Trustees pursuant to this Trust Agreement.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or
the Preferred Securities.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of January 17, 1996, among the Trust, the Depositor and
the underwriters named therein.
ARTICLE II
10
Establishment of the Trust
Section 2.01 Name. The Trust continued hereby shall be
known as "Alabama Power Capital Trust I", in which name the
Trustees may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and xxx
and be sued. The Administrative Trustees may change the name of
the Trust from time to time following written notice to the
Holders.
Section 2.02 Offices of the Trustees; Principal Place of
Business. The address of the Property Trustee is Chemical Bank,
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
address in New York as the Property Trustee may designate by
written notice to the Securityholders and the Depositor. The
principal place of business of the Delaware Trustee is 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000, or at such other
address in Delaware as the Delaware Trustee may designate by
notice to the Depositor. The address of the Administrative
Trustees is c/o Alabama Power Company, 000 Xxxxx 00xx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, Attention: Treasurer. The principal
place of business of the Trust is c/o Alabama Power Company, 000
Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000. The Depositor may
change the principal place of business of the Trust at any time
by giving notice thereof to the Trustees.
Section 2.03 Initial Contribution of Trust Property;
Organizational Expenses. The Delaware Trustee acknowledges
receipt in trust from the Depositor in connection with the
Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of the
Trustees, promptly reimburse the Trustees for any such expenses
paid by the Trustees. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
Section 2.04 Issuance of the Preferred Securities. On
January 17, 1996, the Depositor and the Trust executed and
delivered the Underwriting Agreement. Contemporaneously with the
execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall execute
and deliver to the underwriters named therein Preferred
Securities Certificates, registered in the name of the nominee of
the initial Clearing Agency, in an aggregate amount of 3,880,000
Preferred Securities having an aggregate Liquidation Amount of
$97,000,000, against receipt of the aggregate purchase price of
such Preferred Securities of $97,000,000, which amount the
Administrative Trustees shall promptly deliver to the Property
Trustee.
Section 2.05 Subscription and Purchase of Junior
Subordinated Notes; Issuance of the Common Securities.
11
Contemporaneously with the execution and delivery of this Trust
Agreement, the Administrative Trustees, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Junior
Subordinated Notes, registered in the name of the Property
Trustee, on behalf of the Trust and the Holders, and having an
aggregate principal amount equal to $100,000,000, and, in
satisfaction of the purchase price for such Junior Subordinated
Notes, the Administrative Trustees, on behalf of the Trust, shall
(i) execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an
aggregate amount of 120,000 Common Securities having an aggregate
Liquidation Amount of $3,000,000, and (ii) cause the Property
Trustee to deliver to the Depositor the sum of $100,000,000.
Section 2.06 Declaration of Trust. The exclusive purposes
and functions of the Trust are (i) to issue and sell the Trust
Securities and use the proceeds from such sale to acquire the
Junior Subordinated Notes, and (ii) to engage in those activities
necessary, incidental, appropriate or convenient thereto. The
Depositor hereby appoints each of the Bank, the Delaware Bank,
Xxxxxxx X. Xxxxx, Xx., and J. Xxxxx XxXxxxx as trustees of the
Trust, to have all the rights, powers and duties to the extent
set forth herein. The Property Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the
conditions set forth herein subject to the conditions set forth
herein for the benefit of the Trust and the Securityholders. The
Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of
the Property Trustee or the Administrative Trustees set forth
herein, except that the Delaware Trustee is hereby authorized and
directed, together with the Property Trustee and Administrative
Trustees, to execute and cause the Restated Certificate of Trust
of the Trust (in the form of Exhibit A attached) to be filed with
the Office of the Secretary of State of Delaware. The Delaware
Trustee shall be one of the Trustees for the sole and limited
purpose of fulfilling the requirements of the Delaware Business
Trust Act.
Section 2.07 Authorization to Enter into Certain
Transactions. The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (C) of this
Section, and in accordance with the following provisions (A) and
(B), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Trust Agreement,
and, to perform all acts in furtherance thereof, including
without limitation, the following:
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A. As among the Trustees, the Administrative Trustees
shall have the exclusive power, duty and authority to act on
behalf of the Trust with respect to the following matters:
(i) to acquire the Junior Subordinated Notes with
the proceeds of the sale of the Trust Securities; provided,
however, the Administrative Trustees shall cause legal title
to all of the Junior Subordinated Notes to be vested in, and
the Junior Subordinated Notes to be held of record in the
name of, the Property Trustee for the benefit of the Trust
and Holders of the Trust Securities;
(ii) to give the Depositor and the Property
Trustee prompt written notice of the occurrence of any
Special Event (as defined in the Supplemental Indenture) and
to take any ministerial actions in connection therewith;
provided, that the Administrative Trustees shall consult
with the Depositor and the Property Trustee before taking or
refraining to take any ministerial action in relation to a
Special Event;
(iii) to establish a record date with respect to
all actions to be taken hereunder that require a record date
be established, including for the purposes of sec 316(c) of
the Trust Indenture Act and with respect to Distributions,
voting rights, redemptions, and exchanges, and to issue
relevant notices to Holders of the Trust Securities as to
such actions and applicable record dates;
(iv) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust
claims or demands of or against the Trust ("Legal Action"),
unless pursuant to Section 2.07(B)(v), the Property Trustee
has the power to bring such Legal Action;
(v) to employ or otherwise engage employees and
agents (who may be designated as officers with titles) and
managers, contractors, advisors, and consultants and pay
reasonable compensation for such services;
(vi) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(vii) to give the certificate to the Property
Trustee required by sec 314(a)(4) of the Trust Indenture Act,
which certificate may be executed by any Administrative
Trustee;
(viii) to take all actions and perform such duties
as may be required of the Administrative Trustees pursuant
to the terms of this Agreement;
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(ix) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges
as a statutory business trust under the laws of the State of
Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of
the Holders of the Trust Securities or to enable the Trust
to effect the purposes for which the Trust has been created;
(x) to take all action necessary to cause all
applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly
prepared and filed by the Administrative Trustees, on behalf
of the Trust;
(xi) to issue and sell the Trust Securities;
(xii) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the
Expense Agreement and the Certificate Depository Agreement
and such other agreements as may be necessary or desirable
in connection with the consummation hereof;
(xiii) to assist in the registration of the
Preferred Securities under the Securities Act of 1933, as
amended, and under state securities or blue sky laws, and
the qualification of the Trust Agreement as a trust
indenture under the Trust Indenture Act;
(xiv) to assist in the listing of the Preferred
Securities upon such securities exchange or exchanges as
shall be determined by the Depositor and the registration of
the Preferred Securities under the Securities Exchange Act
of 1934, as amended, and the preparation and filing of all
periodic and other reports and other documents pursuant to
the foregoing;
(xv) to send notices (other than notices of
default) and other information regarding the Trust
Securities and the Junior Subordinated Notes to the
Securityholders in accordance with this Trust Agreement;
(xvi) to appoint a Paying Agent, authenticating
agent and Securities Registrar in accordance with this Trust
Agreement;
(xvii) to register transfers of the Trust Securities
in accordance with this Trust Agreement;
(xviii) to assist in, to the extent provided in this
Trust Agreement, the winding up of the affairs of and
14
termination of the Trust and the preparation, execution and
filing of the certificate of cancellation with the Secretary
of State of the State of Delaware; and
(xix) to take any action incidental to the
foregoing as the Administrative Trustees may from time to
time determine is necessary, appropriate, convenient or
advisable to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder).
B. As among the Trustees, the Property Trustee shall have
the exclusive power, duty and authority to act on behalf of the
Trust with respect to the following matters:
(i) engage in such ministerial activities as
shall be necessary or appropriate to effect promptly the
redemption of the Trust Securities to the extent the Junior
Subordinated Notes are redeemed or mature;
(ii) upon notice of distribution issued by the
Administrative Trustees in accordance with the terms of this
Trust Agreement, engage in such ministerial activities as
shall be necessary or appropriate to effect promptly the
distribution pursuant to terms of this Trust Agreement of
Junior Subordinated Notes to Holders of Trust Securities
upon the occurrence of a Special Event (as defined in the
Supplemental Indenture);
(iii) subject to the terms hereof, exercise all of
the rights, powers and privileges of a holder of the Junior
Subordinated Notes under the Subordinated Indenture and, if
an Event of Default occurs and is continuing, shall enforce
for the benefit of, and subject to the rights of, the
Holders of the Trust Securities, its rights as holder of the
Junior Subordinated Notes under the Subordinated Indenture;
(iv) take all actions and perform such duties as
may be specifically required of the Property Trustee
pursuant to the terms of this Trust Agreement;
(v) take any Legal Action which arises out of or
in connection with an Event of Default or the Property
Trustee's duties and obligations under this Trust Agreement,
the Delaware Business Trust Act or the Trust Indenture Act;
(vi) the establishment and maintenance of the
Payment Account;
(vii) the receipt of and holding of legal title to
the Junior Subordinated Notes as described herein;
15
(viii) the collection of interest, principal and any
other payments made in respect of the Junior Subordinated
Notes in the Payment Account;
(ix) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities;
(x) the sending of notices of default and other
information regarding the Trust Securities and the Junior
Subordinated Notes to the Securityholders in accordance with
this Trust Agreement;
(xi) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(xii) as provided in this Trust Agreement, the
winding up of the affairs of and termination of the Trust
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of Delaware; and
(xiii) the taking of any action incidental to the
foregoing as the Property Trustee may from time to time
determine is necessary, appropriate, convenient or advisable
to protect and conserve the Trust Property for the benefit
of the Securityholders (without consideration of the effect
of any such action on any particular Securityholder).
C. So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including, to
Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify
as a grantor trust for United States federal income tax purposes,
(iv) incur any indebtedness for borrowed money, (v) take or
consent to any action that would result in the placement of a
Lien on any of the Trust Property, (vi) issue any securities
other than the Trust Securities, or (vii) have any power to, or
agree to any action by the Depositor that would vary the
investment (within the meaning of Treasury Regulation Section
301.7701-4(c)) of the Trust or of the Securityholders. The
Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse
to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
D. In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility
16
to assist the Trust with respect to, or effect on behalf of the
Trust, the following (and any actions taken by the Depositor in
furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 under the
Securities Act of 1933, as amended, in relation to the
Preferred Securities, including any amendments thereto;
(ii) to determine the states in which to take
appropriate action to qualify or register for sale all or
part of the Preferred Securities and to do any and all such
acts, other than actions which must be taken by or on behalf
of the Trust, and advise the Trustees of actions they must
take on behalf of the Trust, and prepare for execution and
filing any documents to be executed and filed by the Trust
or on behalf of the Trust, as the Depositor deems necessary
or advisable in order to comply with the applicable laws of
any such States;
(iii) to prepare for filing by the Trust an
application to the New York Stock Exchange or any other
national stock exchange or the NASDAQ National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to
the registration of the Preferred Securities under Section
12(b) of the Exchange Act, including any amendments thereto;
(v) to negotiate the terms of the Underwriting
Agreement providing for the sale of the Preferred Securities
and to execute, deliver and perform the Underwriting
Agreement on behalf of the Trust; and
(vi) any other actions necessary, incidental,
appropriate or convenient to carry out any of the foregoing
activities.
E. Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct
the affairs of the Trust and to operate the Trust so that the
Trust will not be deemed to be an "investment company" required
to be registered under the Investment Company Act of 1940, as
amended, or taxed as other than a grantor trust for United States
federal income tax purposes and so that the Junior Subordinated
Notes will be treated as indebtedness of the Depositor for United
States federal income tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate
of Trust or this Trust Agreement, that each of the Depositor and
17
the Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such action
does not adversely affect the interests of the Holders of the
Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust
shall consist of the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders and the Trust in accordance with this Trust
Agreement. The right, title and interest of the Property Trustee
to the Junior Subordinated Notes shall vest automatically in each
Person who may thereafter be appointed as Property Trustee in
accordance with the terms hereof. Such vesting and cessation of
title shall be effective whether or not conveyancing documents
have been executed and delivered.
Section 2.10 Mergers and Consolidations of the Trust. The
Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other
body, except as described below. The Trust may at the request of
the Company, with the consent of the Administrative Trustees and
without the consent of the Holders of the Trust Securities,
consolidate, amalgamate, merge with or into, or be replaced by a
trust organized as such under the laws of any state; provided,
that (i) such successor entity either (x) expressly assumes all
of the obligations of the Trust with respect to the Trust
Securities or (y) substitutes for the Preferred Securities other
securities having substantially the same terms as the Trust
Securities (herein referred to as the "Successor Securities") so
long as the Successor Securities rank the same as the Trust
Securities rank in priority with respect to Distributions and
payments upon liquidation, redemption and otherwise, (ii) the
Company expressly appoints a trustee of such successor entity
possessing the same powers and duties as the Property Trustee as
the holder of legal title to the Junior Subordinated Notes, (iii)
the Preferred Securities or any Successor Securities are listed,
or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed,
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation,
amalgamation or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Securities
(including any Successor Securities) in any material respect,
(vi) such successor entity has a purpose identical to that of the
18
Trust, (vii) prior to such merger, consolidation, amalgamation,
or replacement, the Company has received an opinion from
independent counsel to the Trust experienced in such matters to
the effect that (A) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and
privileges of the Holders of the Trust Securities (including any
Successor Securities) in any material respect, and (B) following
such merger, consolidation, amalgamation or replacement, neither
the Trust nor such successor entity will be required to register
as an investment company under the Investment Company Act of
1940, and (viii) the Company guarantees the obligations of such
successor entity under the Successor Securities at least to the
extent provided by the Guarantee. Notwithstanding the foregoing,
the Trust shall not, except with the consent of Holders of 100%
in liquidation amount of the Trust Securities, consolidate,
amalgamate, merge with or into, or be replaced by any other
entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation,
amalgamation, merger or replacement would cause the Trust or the
successor entity to be classified as other than a grantor trust
for federal income tax purposes.
ARTICLE III
Payment Account
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and an
agent of the Property Trustee shall have exclusive control and
sole right of withdrawal with respect to the Payment Account for
the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All
monies and other property deposited or held from time to time in
the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders
and for distribution as herein provided, including (and subject
to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect to,
the Junior Subordinated Notes. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
Distributions; Redemption
19
Section 4.01 Distributions.
(a) Distributions on the Trust Securities shall be
cumulative and accrue from the Issue Date and, except in the
event that the Depositor exercises its right to extend the
interest payment period for the Junior Subordinated Notes
pursuant to Section 104 of the Supplemental Indenture, shall be
payable quarterly in arrears on March 31, June 30, September 30
and December 31 of each year, commencing on March 31, 1996. If
any date on which Distributions are otherwise payable on the
Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, payment of such
distribution shall be made on the immediately preceding Business
Day, in each case, with the same force and effect as if made on
such date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be
fixed at a rate of 7.375% per annum of the Liquidation Amount of
the Trust Securities. The amount of Distributions payable for
any full quarterly period shall be computed on the basis of
twelve 30-day months and a 360-day year. If the interest payment
period for the Junior Subordinated Notes is extended pursuant to
Section 104 of the Supplemental Indenture (an "Extension
Period"), then the rate per annum at which Distributions on the
Trust Securities accumulate shall be increased by an amount such
that the aggregate amount of Distributions that accumulate on all
Trust Securities during any such Extension Period is equal to the
aggregate amount of interest (including interest payable on
unpaid interest at the percentage rate per annum set forth above,
compounded quarterly) that accrues during any such Extension
Period on the Junior Subordinated Notes. The payment of such
deferred interest, together with interest thereon, will be
distributed to the Holders of the Trust Securities as received at
the end of any Extension Period. The amount of Distributions
payable for any period shall include the Additional Amounts, if
any.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the
extent that the Trust has legally and immediately available funds
in the Payment Account for the payment of such Distributions.
(d) Quarterly payments of Distributions, including
Additional Amounts, if any, on the Trust Securities on each
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities on the
relevant record date, which shall be the close of business on the
fifteenth calendar day prior to the relevant Distribution Date.
20
Each Trust Security upon registration of transfer of or in
exchange for or in lieu of any other Trust Security shall carry
the rights of Distributions accrued (including Additional
Amounts, if any) and unpaid, and to accrue (including Additional
Amounts, if any), which were carried by such other Trust
Security.
Section 4.02 Redemption.
(a) On each Redemption Date with respect to the Junior
Subordinated Notes, the Trust will be required to redeem a Like
Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date to
each Holder of Trust Securities to be redeemed, at such Holder's
address appearing in the Security Register. All notices of
redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the total Liquidation Amount of the
Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price
will become due and payable upon each such Trust Security to
be redeemed and that interest thereon will cease to accrue
on and after such date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from
the contemporaneous redemption of Junior Subordinated Notes.
Redemptions of the Trust Securities shall be made and the
Redemption Price shall be deemed payable on each Redemption Date
only to the extent that the Trust has funds legally and
immediately available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 2:00 New York time,
on the Redemption Date, subject to Section 4.02(c), the Property
Trustee will, so long as the Preferred Securities are in book-
entry only form, irrevocably deposit with the Clearing Agency for
the Preferred Securities funds sufficient to pay the applicable
Redemption Price. If the Preferred Securities are no longer in
book-entry only form, the Property Trustee, subject to Section
21
4.02(c), shall irrevocably deposit with the Paying Agent funds
sufficient to pay the applicable Redemption Price and will give
the Paying Agent irrevocable instructions to pay the Redemption
Price to the Holders thereof upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the
Holders of such Trust Securities as they appear on the Register
for the Trust Securities on the relevant record dates for the
related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then upon the date of
such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price, but
without interest, and such Securities will cease to be
outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if
such Business Day is in the next succeeding calendar year,
payment of such distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and
effect as if made on such date. In the event that payment of the
Redemption Price in respect of Trust Securities is improperly
withheld or refused and not paid either by the Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accrue at the then applicable rate,
from such Redemption Date originally established by the Trust for
such Preferred Securities to the date such Redemption Price is
actually paid.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the recordholders thereof as they appear on the
Securities Register for the Trust Securities on the relevant
record date, which shall be the close of business on the
fifteenth calendar day prior to the Redemption Date.
(f) If less than all the Outstanding Trust Securities are
to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be
allocated 3% to the Common Securities and 97% to the Preferred
Securities, with such adjustments that each amount so allocated
shall be divisible by $25. The particular Preferred Securities
to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by
such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for a
redemption of portions (equal to $25 or integral multiple
thereof) of the Liquidation Amount of Preferred Securities of a
denomination larger than $25; provided, however, that before
22
undertaking redemption of the Preferred Securities on other than
a pro rata basis, the Property Trustee shall have received an
Opinion of Counsel that the status of the Trust as a grantor
trust for federal income tax purposes would not be adversely
affected. The Property Trustee shall promptly notify the
Security Registrar in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation
Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate,
in the case of any Preferred Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount
of Preferred Securities which has been or is to be redeemed.
(g) Subject to the foregoing provisions of Section 4.02 and
to applicable law (including, without limitation, United States
federal securities laws), the Company or its Affiliates may, at
any time and from time to time, purchase outstanding Preferred
Securities by tender, in the open market or by private agreement.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts,
if applicable) on, and the Redemption Price of, the Trust
Securities, as applicable, shall be made pro rata based on the
Liquidation Amount of the Trust Securities; provided, however,
that if on any Distribution Date or Redemption Date an Indenture
Event of Default shall have occurred and be continuing, no
payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and
no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on
all Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities, shall have been made or
provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of
all Distributions (including Additional Amounts, if applicable)
on, or Redemption Price of, Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Indenture Event of
Default, the Holder of Common Securities will be deemed to have
waived any such Event of Default under the Trust Agreement until
the effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Events of Default under the Trust
Agreement with respect to the Preferred Securities have been so
23
cured, waived or otherwise eliminated, the Property Trustee shall
act solely on behalf of the Holders of the Preferred Securities
and not the Holder of the Common Securities, and only the Holders
of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
Section 4.04 Payment Procedures. Payments in respect of
the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall
appear on the Securities Register or, if the Preferred Securities
are held by a Clearing Agency, such Distributions shall be made
to the Clearing Agency, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable distribution
dates. Payments in respect of the Common Securities shall be
made in such manner as shall be mutually agreed between the
Property Trustee and the Holder of the Common Securities.
Section 4.05 Tax Returns and Reports. The Administrative
Trustee(s) shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States federal, state
and local tax and information returns and reports required to be
filed by or in respect of the Trust. Prior to January 31 of each
year, the Administrative Trustee(s) shall provide or cause to be
provided to each Holder an Internal Revenue Service Form 1099
which will report income and OID with respect to such securities.
ARTICLE V
Trust Securities Certificates
Section 5.01 Initial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section
2.03 and until the issuance of the Trust Securities, and at any
time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section 5.02 The Trust Securities Certificates. Each of
the Preferred and Common Securities Certificates shall be issued
in minimum denominations of $25 and integral multiples in excess
thereof. The Trust Securities Certificates shall be executed on
behalf of the Trust by manual or facsimile signature of at least
one Administrative Trustee. Trust Securities Certificates
bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly
issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and
delivery of such Trust Securities Certificates or did not hold
such offices at the date of authentication and delivery of such
Trust Securities Certificates. A transferee of a Trust
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Securities Certificate shall become a Securityholder, and shall
be entitled to the rights and subject to the obligations of a
Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to
Section 5.04.
Section 5.03 Authentication of Trust Securities
Certificates. On the Issue Date, the Administrative Trustees
shall cause Trust Securities Certificates, in an aggregate
Liquidation Amount as provided in Sections 2.04 and 2.05, to be
executed on behalf of the Trust, authenticated and delivered to
or upon the written order of the Depositor signed by its Chairman
of the Board, its President or any Vice President, without
further corporate action by the Depositor, in authorized
denominations. No Trust Securities Certificate shall entitle its
holder to any benefit under this Trust Agreement, or shall be
valid for any purpose, unless there shall appear on such Trust
Securities Certificate a certificate of authentication
substantially in the form set forth in Exhibit E or Exhibit C, as
applicable, executed by at least one Administrative Trustee by
manual signature; such authentication shall constitute conclusive
evidence that such Trust Securities Certificate shall have been
duly authenticated and delivered hereunder. All Trust Securities
Certificates shall be dated the date of their authentication.
Section 5.04 Registration of Transfer and Exchange of
Preferred Securities Certificates. The Securities Registrar
shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.08, a Securities Register in
which, subject to such reasonable regulations as it may
prescribe, the Securities Registrar shall provide for the
registration of Preferred Securities Certificates and the Common
Securities Certificates (subject to Section 5.10 in the case of
the Common Securities Certificates) and registration of transfers
and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities
Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained
pursuant to Section 5.08, the Administrative Trustees shall
execute, authenticate and deliver in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of authentication by the
Administrative Trustee or Trustees. The Securities Registrar
shall not be required to register the transfer of any Preferred
Securities that have been called for redemption. At the option
of a Holder, Preferred Securities Certificates may be exchanged
for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate
Liquidation Amount upon surrender of the Preferred Securities
25
Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Trustees and the Securities Registrar duly
executed by the Holder or his attorney duly authorized in
writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and
subsequently disposed of by the Security Registrar in accordance
with its customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but
the Securities Registrar may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Preferred Securities
Certificates.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If (a) any mutilated Trust Securities
Certificate shall be surrendered to the Securities Registrar, or
if the Securities Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the
Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of
them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees or any one of them on
behalf of the Trust shall execute and authenticate and make
available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of any
new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require
the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to
this Section shall constitute conclusive evidence of an ownership
interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Trust Securities Certificate shall
be found at any time.
Section 5.06 Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration
of transfer, the Trustees or the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall
be registered in the Securities Register as the owner of such
Trust Securities Certificate for the purpose of receiving
26
distributions and for all other purposes whatsoever, and neither
the Trustees nor the Securities Registrar shall be bound by any
notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to
be furnished to (i) the Depositor and the Property Trustee semi-
annually, not later than June 1 and December 1 in each year and
(ii) the Depositor or the Property Trustee, as the case may be,
within 15 days after receipt by any Administrative Trustee of a
request therefor from the Depositor or the Property Trustee, as
the case may be, in writing, a list, in such form as the
Depositor or the Property Trustee, as the case may be, may
reasonably require, of the names and addresses of the
Securityholders as of a date not more than 15 days prior to the
time such list is furnished. If three or more Securityholders or
one or more Holders of Trust Securities Certificates evidencing
not less than 25% of the outstanding Liquidation Amount apply in
writing to the Administrative Trustees, and such application
states that the applicants desire to communicate with other
Securityholders with respect to their rights under this Trust
Agreement or under the Trust Securities Certificates and such
application is accompanied by a copy of the communication that
such applicants propose to transmit, then the Administrative
Trustees shall, within five Business Days after the receipt of
such application, afford such applicants access during normal
business hours to the current list of Securityholders. Each
Holder, by receiving and holding a Trust Securities Certificate,
shall be deemed to have agreed not to hold either the Depositor
or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from
which such information was derived.
Section 5.08 Maintenance of Office or Agency. The
Administrative Trustees shall maintain in the Borough of
Manhattan, New York, an office or offices or agency or agencies
where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust
Securities Certificates may be served. The Administrative
Trustees initially designate Chemical Bank, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as its principal agency for such
purposes. The Administrative Trustees shall give prompt written
notice to the Depositor and to the Securityholders of any change
in the location of the Securities Register or any such office or
agency.
Section 5.09 Appointment of Paying Agent. The Paying
Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such
distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to
27
withdraw funds from the Payment Account for the purpose of making
the distributions referred to above. The Administrative Trustees
may revoke such power and remove the Paying Agent if such
Trustees determine in their sole discretion that the Paying Agent
shall have failed to perform its obligations under this Agreement
in any material respect. The Paying Agent shall initially be the
Property Trustee, and it may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. The
Property Trustee shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Administrative Trustees and
the Depositor. In the event that the Property Trustee shall no
longer be the Paying Agent, the Administrative Trustees shall
appoint a successor that is acceptable to the Depositor to act as
Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent
or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The
Paying Agent shall return all unclaimed funds to the Property
Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall
apply to the Property Trustee also in its role as Paying Agent,
for so long as the Property Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context
requires otherwise.
Section 5.10 Ownership of Common Securities by Depositor.
On the Issue Date, the Depositor shall acquire, and thereafter
retain, beneficial and record ownership of the Common Securities.
Any attempted transfer of the Common Securities, except for
transfers by operation of law, shall be void. The Administrative
Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS
NOT TRANSFERABLE".
Section 5.11 Book-Entry Preferred Securities Certificates;
Common Securities Certificate.
(a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry
Preferred Securities Certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on
behalf of, the Trust. Such Preferred Securities Certificate or
28
Certificates shall initially be registered on the Securities
Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a definitive Preferred
Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities
Certificates have been issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall
be in full force and effect;
(ii) the Securities Registrar and the Trustees
shall be entitled to deal with the Clearing Agency for all
purposes of this Trust Agreement relating to the Book-Entry
Preferred Securities Certificates (including the payment of
principal of and interest on the Book-Entry Preferred
Securities and the giving of instructions or directions to
Owners of Book-Entry Preferred Securities) as the sole
Holder of Book-Entry Preferred Securities and shall have no
obligations to the Owners thereof;
(iii) to the extent that the provisions of this
Section conflict with any other provisions of this Trust
Agreement, the provisions of this Section shall control;
(iv) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Owners and
the Clearing Agency and/or the Clearing Agency Participants.
Pursuant to the Certificate Depository Agreement, unless and
until Definitive Preferred Securities Certificates are
issued pursuant to Section 5.13, the Clearing Agency will
make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the
Preferred Securities to such Clearing Agency Participants;
and
(v) whenever this Trust Agreement requires or
permits actions to be taken based upon instructions or
directions of Holders of Trust Securities Certificates
evidencing a specified percentage of the aggregate
Liquidation Amount, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has
received instructions to such effect from Owners and/or
Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial
interest in the applicable class of Trust Securities
Certificates and has delivered such instructions to the
Trustees.
29
(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of
a definitive Common Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a
notice or other communication to the Owners is required under
this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant
to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the
Clearing Agency, and shall have no obligations to the Owners.
Section 5.13 Definitive Preferred Securities Certificates.
If (i) the Depositor advises the Trustees in writing that the
Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Preferred
Securities Certificates, and the Depositor is unable to locate a
qualified successor, or (ii) the Depositor at its option advises
the Trustees in writing that it elects to terminate the book-
entry system through the Clearing Agency, then the Administrative
Trustees shall notify the Clearing Agency and Holders of the
Preferred Securities. Upon surrender to the Administrative
Trustees of the typewritten Preferred Securities Certificate or
Certificates representing the Book-Entry Preferred Securities
Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees or any one of them
shall execute and authenticate the Definitive Preferred
Securities Certificates in accordance with the instructions of
the Clearing Agency. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected
in relying on, such instructions. Upon the issuance of
Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities
Certificates as Securityholders. The Definitive Preferred
Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of
them.
Section 5.14 Rights of Securityholders. The legal title
to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than the beneficial ownership interest in the
assets of the Trust conferred by their Trust Securities, and they
shall have no right to call for any partition or division of
property, profits or rights of the Trust except as described
below. The Trust Securities shall be personal property giving
only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive rights
30
and when issued and delivered to Securityholders against payment
of the purchase price therefor will be fully paid and
nonassessable by the Trust. Except as otherwise provided in the
Expense Agreement and Section 10.01 hereof, the Holders of the
Trust Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.10 or
Section 10.03 of this Trust Agreement, in the Subordinated
Indenture, and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of
the Trust Securities Certificates, be construed so as to
constitute the Securityholders from time to time as partners or
members of an association.
(b) So long as any Junior Subordinated Notes are held by
the Property Trustee, the Trustees shall not (i) direct the time,
method and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or executing any trust or
power conferred on the Indenture Trustee with respect to such
Junior Subordinated Notes, (ii) waive any past default which is
waivable under Section 513 of the Subordinated Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Junior Subordinated Notes shall be due and
payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Junior
Subordinated Notes, where such consent shall be required, or to
any other action, as holder of the Junior Subordinated Notes,
under the Subordinated Indenture, without, in each case,
obtaining the prior approval of the Holders of at least 66-2/3%
in Liquidation Amount of the Preferred Securities; provided,
however, that where a consent under the Subordinated Indenture
would require the consent of each holder of Junior Subordinated
Notes affected thereby, no such consent shall be given by the
Trustees without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of
Preferred Securities, except pursuant to a subsequent vote of the
Holders of Preferred Securities. The Property Trustee shall
notify all Holders of the Preferred Securities of any notice of
31
default received from the Indenture Trustee with respect to the
Junior Subordinated Notes. In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Trustees shall,
at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not
be classified as other than a grantor trust for United States
federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i)
any action that would adversely affect the powers, references or
special rights of the Preferred Securities, whether by way of
amendment to the Trust Agreement or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders
of Outstanding Preferred Securities as a class will be entitled
to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the
Holders of at least 66-2/3% in Liquidation Amount of the
Outstanding Preferred Securities. In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Trustees shall,
at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not
be classified as other than a grantor trust for United States
federal income tax purposes on account of such action.
Section 6.02 Notice of Meetings. Notice of all meetings
of the Preferred Securityholders, stating the time, place and
purpose of the meeting, shall be given by the Administrative
Trustees pursuant to Section 10.08 to each Preferred
Securityholder of record, at his registered address, at least 15
days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further
notice.
Any and all notice to which any Preferred Securityholder
hereunder may be entitled and any and all communications shall be
deemed duly served or given if mailed, postage prepaid, addressed
to any Preferred Securityholders of record at his last known
address as recorded on the Security Register.
Section 6.03 Meetings of Preferred Securityholders. No
annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter upon the written request of
the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time
32
in their discretion, call a meeting of Preferred Securityholders
to vote on any matters as to the which Preferred Securityholders
are entitled to vote.
Preferred Securityholders of record of 50% of the Preferred
Securities (based upon their Liquidation Amount), present in
person or by proxy, shall constitute a quorum at any meeting of
Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Preferred Securityholders of record present, in person or by
proxy, holding more than 66-2/3% of the Preferred Securities
(based upon their Liquidation Amount) held by the Preferred
Securityholders of record present, either in person or by proxy,
at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be
entitled to one vote for each $25 of Liquidation Amount
represented by their Trust Securities in respect of any matter as
to which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc. At any meeting of
Securityholders, any Securityholder entitled to vote may vote by
proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution
of the Property Trustee, proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to
vote. When Trust Securities are held jointly by several persons,
any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such
joint owners or their proxies so present disagree as to any vote
to be cast, such vote shall not be received in respect of such
Trust Securities. A proxy purporting to be executed by or on
behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger.
Section 6.06 Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may
be taken without a meeting if Securityholders holding at least
66-2/3% of all outstanding Trust Securities entitled to vote in
respect of such action (or such other proportion thereof as shall
be required by any express provision of this Trust Agreement)
shall consent to the action in writing (based upon their
Liquidation Amount).
33
Section 6.07 Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written
consent, or to participate in any distribution on the Trust
Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any
meeting of Securityholders or the payment of distribution or
other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record
for such purposes.
Section 6.08 Acts of Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
appointed in writing; and, except as otherwise expressly provided
herein, such action shall become effective when such instrument
or instruments are delivered to the Administrative Trustees.
Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgements of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
manner which the Trustees deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor
34
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any
particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
liquidation amount.
If any dispute shall arise between the Securityholders of
Trust Securities and the Administrative Trustees or among such
Securityholders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect
to such matter.
Section 6.09 Inspection of Records. Upon reasonable
notice to the Trustees, the records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE VII
Representations and Warranties of the Trustees
Section 7.01 Representations and Warranties of the
Trustee. The Bank, the Delaware Bank, the Property Trustee and
the Delaware Trustee, each on behalf of and as to itself, hereby
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(a) the Bank is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws
of the State of New York, and the Delaware Trustee is a banking
corporation or trust company duly organized, validly existing and
in good standing under the laws of the State of Delaware;
(b) each of the Bank and the Delaware Bank has full
corporate power, authority and legal right to execute, deliver
and perform their obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery
and performance by it of this Trust Agreement;
35
(c) this Trust Agreement has been duly authorized, executed
and delivered by each of the Bank and the Delaware Bank and
constitutes the valid and legally binding agreement of each of
the Bank and the Delaware Bank, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles;
(d) the execution, delivery and performance by each of the
Bank and the Delaware Bank of this Trust Agreement have been duly
authorized by all necessary corporate action on the part of the
Bank, Property Trustee, the Delaware Bank and the Delaware
Trustee and do not require any approval of stockholders of the
Bank or the Delaware Bank and such execution, delivery and
performance will not (i) violate the Bank's or the Delaware
Bank's Charter or By-laws, or (ii) violate any law, governmental
rule or regulation of the United States or the State of New York
or Delaware, as the case may be, governing the banking or trust
powers of the Bank and the Property Trustee or the Delaware Bank
and the Delaware Trustee, or any order, judgment or decree
applicable to the Bank, the Property Trustee, the Delaware Bank
or the Delaware Trustee; and
(e) neither the authorization, execution or delivery by the
Bank or the Delaware Bank of this Trust Agreement, nor the
consummation of any of the transactions by the Bank, the Property
Trustee, the Delaware Bank or the Delaware Trustee (as
appropriate in context) contemplated herein or therein, nor the
issuance of the Trust Securities Certificates pursuant to this
Trust Agreement require the consent or approval of, the giving of
notice to, the registration with or the taking of any other
action with respect to any governmental authority or agency under
any existing federal, New York or Delaware law governing the
banking or trust powers of the Bank or the Delaware Bank.
ARTICLE VIII
The Trustees
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, the Trust Indenture Act. Notwithstanding
the foregoing, no provision of this Trust Agreement shall require
the Trustees to expend or risk their own funds or otherwise incur
any financial liability in the performance of any of their duties
hereunder, or in the exercise of any of their rights or powers,
if they shall have reasonable grounds for believing that
36
repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to them. Whether or not
therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of
or affording protection to the Trustees shall be subject to the
provisions of this Section.
(b) All payments made by the Property Trustee in respect of
the Trust Securities shall be made only from the income and
proceeds from the Trust Property and only to the extent that
there shall be sufficient income or proceeds from the Trust
Property to enable the Property Trustee to make payments in
accordance with the terms hereof. Each Securityholder, by its
acceptance of a Trust Security, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent
available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.01(b)
does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property
Trustee, in the Trust Indenture Act.
Section 8.02 Notice of Defaults. Within 90 days after the
occurrence of any default, the Property Trustee shall transmit,
in the manner and to the extent provided in Section 10.08, notice
of any default known to the Property Trustee to the
Securityholders, the Administrative Trustees and the Depositor,
unless such default shall have been cured or waived. For the
purpose of this Section, the term "default" means any event which
is, or after notice or lapse of time or both would become, an
Event of Default.
Section 8.03 Certain Rights of Property Trustee. Subject
to the provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate
of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action, or (B) in
construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
37
herein, or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of
action to be taken. The Property Trustee shall take
such action, or refrain from taking such actions as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee
shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) the Property Trustee may consult with counsel of its
selection and the written 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;
(iv) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Trust Agreement at the request or direction of any
of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have
offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such
request or direction;
(v) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
approval, bond or other document, unless requested in
writing to do so by one or more Securityholders;
(vi) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys,
provided that the Property Trustee shall be responsible
38
for its own negligence or recklessness with respect to
selection of any agent or attorney appointed by it
hereunder.
Section 8.04 Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust
Securities Certificates shall be taken as the statements of the
Trust, and the Trustees do not assume any responsibility for
their correctness. The Trustees shall not be accountable for the
use or application by the Trust of the proceeds of the Trust
Securities in accordance with Section 2.05.
The Property Trustee may conclusively assume that any funds
held by it hereunder are legally available unless an officer of
the Property Trustee assigned to its Corporate Trustee
Administrative Department shall have received written notice from
the Company, any Holder or any other Trustee that such funds are
not legally available.
Section 8.05 May Hold Securities. Except as provided in
the definition of the term "Outstanding" in Article I, any
Trustee or any other agent of the Trustees or the Trust, in its
individual or any other capacity, may become the owner or pledgee
of Trust Securities and may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such
other agent.
Section 8.06 Compensation; Fees; Indemnity.
The Depositor agrees:
(1) to pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder
(which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (including
the reasonable compensation and the expenses and disbursements of
their agents and counsel), except any such expense, disbursement
or advance as may be attributable to their negligence or bad
faith; and
(3) to indemnify the Trustees for, and to hold the Trustees
harmless against, any and all loss, damage, claims, liability or
expense incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the costs and
expenses of defending themselves against any claim or liability
39
in connection with the exercise or performance of any of its
powers or duties hereunder.
The provisions of this Section 8.06 shall survive the
termination of this Agreement.
Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee
hereunder with respect to the Trust Securities. The Property
Trustee shall be a Person that has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to
the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this
Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity
authorized to conduct a trust business and with its principal
place of business in the State of Delaware that shall act through
one or more persons authorized to bind such entity.
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Property Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
Section 8.09 Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in
which any part of the Trust Property may at the time be located,
the Holder of the Common Securities and the Property Trustee
shall have power to appoint, and upon the written request of the
40
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such Trust Property, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable,subject to the other
provisions of this Section. If the Depositor does not join in
such appointment within 15 days after the receipt by it of a
request so to do, or in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment.
Any co-trustee or separate trustee appointed pursuant to this
Section shall satisfy the requirements of Section 8.07.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property,
title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged, and delivered by the
Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject
to the following terms, namely:
(i) The Trust Securities shall be executed,
authenticated and delivered and all rights, powers, duties,
and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees
hereunder, shall be exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations
hereby conferred or imposed upon the Property Trustee in
respect of any property covered by such appointment shall be
conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-
trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed,
the Property Trustee shall be incompetent or unqualified to
perform such Act, in which event such rights, powers,
duties, and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an
instrument in writing executed by it, with the written
41
concurrence of the Depositor, may accept the resignation of
or remove any co-trustee or separate trustee appointed under
this Section, and, in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join
with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned
or removed may be appointed in the manner provided in this
Section.
(iv) No co-trustee or separate trustee hereunder
shall be personally liable by reason of any act or omission
of the Property Trustee, or any other such trustee
hereunder.
(v) The Trustees shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section 8.10 Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (the
"Relevant Trustee") and no appointment of a successor Relevant
Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Relevant Trustee in
accordance with the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time by giving
written notice thereof to the Securityholders. If the instrument
of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the
resigning Relevant Trustee may petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
Unless an Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by
Act of the Holder of the Common Securities. If an Event of
Default shall have occurred and be continuing, the Relevant
Trustee may be removed at such time by Act of the Securityholders
of a majority in Liquidation Amount of the Preferred Securities
Certificates, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust).
42
If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Trustee at a time when no Event
of Default shall have occurred and be continuing, the Holder of
the Common Securities, by Act of the Holder of the Common
Securities delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Relevant Trustee shall
resign, be removed or become incapable of continuing to act as
the Relevant Trustee at a time when an Event of Default shall
have occurred and be continuing, the Holders of Preferred
Securities, by Act of the Securityholders of a majority in
Liquidation Amount of the Preferred Securities then outstanding
delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees, and the
Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If no successor Relevant Trustee shall have been
so appointed in accordance with this Section 8.10 and accepted
appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder of Trust Securities
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee, and each
appointment of a successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name of the successor
Relevant Trustee and the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event of any Administrative Trustee or a
Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the act of the
remaining Administrative Trustee or (ii) otherwise by the
Depositor (with the successor in each case being an individual
who satisfies the eligibility requirement for Administrative
Trustees set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor believes that any
Administrative Trustee has become incompetent or incapacitated,
the Depositor, by notice to the remaining Trustees, may terminate
the status of such Person as an Administrative Trustee (in which
case the vacancy so created will be filled in accordance with the
preceding sentence).
Section 8.11 Acceptance of Appointment by Successor. In
case of the appointment hereunder of a successor Relevant
Trustee, every such successor Relevant Trustee so appointed shall
execute, acknowledge and deliver to the Trust and to the retiring
43
Relevant Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Relevant Trustee; but, on the request of the
Depositor or the successor Relevant Trustee, such retiring
Relevant Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Relevant
Trustee all the rights, powers and trusts of the retiring
Relevant Trustee and shall duly assign, transfer and deliver to
such successor Relevant Trustee all property and money held by
such retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the
Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant
Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant
Trustee shall be qualified and eligible under this Article.
Section 8.12 Merger, Conversion, Consolidation or
Succession to Business. Any corporation or other body into which
the Property Trustee, Delaware Trustee or any Administrative
Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any corporation or other
body resulting from any merger, conversion or consolidation to
which such Relevant Trustee shall be a party, or any corporation
or other body succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the
successor of such Relevant 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.
Section 8.13 Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee shall be or
become a creditor of the Depositor or the Trust (or any other
obligor upon the Junior Subordinated Notes or the Trust
Securities), the Property Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of
claims against the Depositor or Trust (or any such other
obligor). For purposes of Section 311(b)(4) and (6) of the Trust
Indenture Act:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in
44
checks or other orders drawn upon banks or bankers and payable
upon demand; and
(b) "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Depositor or the Trust (or any such
obligor) for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale
of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Property
Trustee simultaneously with the creation of the creditor
relationship with the Depositor or the Trust (or any such
obligor) arising from the making, drawing, negotiating or
incurring of the draft, xxxx of exchange, acceptance or
obligation.
Section 8.14 Reports by Property Trustee.
(a) Within 60 days after May 15 of each year commencing
with May 15, 1996, if required by Section 313(a) of the Trust
Indenture Act, the Property Trustee shall transmit a brief report
dated as of such May 15 with respect to any of the events
specified in such Section 313(a) that may have occurred since the
later of the date of this Agreement or the preceding May 15.
(b) The Property Trustee shall transmit to Securityholders
the reports required by Section 313(b) of the Trust Indenture Act
at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted
in the manner and to the persons required by Sections 313(c) and
(d) of the Trust Indenture Act.
Section 8.15 Reports to the Property Trustee. The
Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and
information as required by Section 314 (if any) and, within 120
days after the end of each 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 Section 314 of the
Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions
Precedent. Each of Depositor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given pursuant to
45
Section 314(c)(1) of the Trust Indenture Act shall comply with
Section 314(e) of the Trust Indenture Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be four,
provided that Depositor, by written instrument may increase or
decrease the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and
the number of Administrative Trustees is not reduced pursuant to
Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such
vacancy is filled by the appointment of an Administrative Trustee
in accordance with Section 8.10, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all powers granted to
the Administrative Trustees and shall discharge the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee, may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.07(A),
including any registration statement or amendment thereto filed
with the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to
delegate from time to time to such of their number the doing of
such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders. If (i) the Trust fails to pay distributions in
full on the Preferred Securities for more than 20 consecutive
quarterly distribution periods, or (ii) an Event of Default
occurs and is continuing, then the Holders of Preferred
Securities will rely on the enforcement by the Property Trustee
of its rights against the Company as the holder of the Junior
Subordinated Notes. In addition, the Holders of a majority in
46
aggregate liquidation amount of the Preferred Securities will
have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the
Property Trustee or to direct the exercise of any trust or power
conferred upon the Property Trustee under the Trust Agreement,
including the right to direct the Property Trustee to exercise
the remedies available to it as a holder of the Junior
Subordinated Notes, provided that such direction shall not be in
conflict with any rule of law or with this Trust Agreement, and
could not involve the Property Trustee in personal liability in
circumstances where reasonable indemnity would not be adequate.
If the Property Trustee fails to enforce its rights under the
Junior Subordinated Notes, a Holder of Preferred Securities may,
to the extent permitted by applicable law, institute a legal
proceeding against the Company to enforce its rights under this
Trust Agreement without first instituting any legal proceeding
against the Property Trustee or any other person or entity,
including the Trust; 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
Trust 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 Trust Agreement, except in the manner herein
provided and for the equal and ratable benefit of all such
Holders.
ARTICLE IX
Termination and Liquidation
Section 9.01 Termination Upon Expiration Date. The Trust
shall automatically terminate on April 30, 2026 (the "Expiration
Date") or earlier pursuant to Section 9.02.
Section 9.02 Early Termination. Upon the first to occur
of any of the following events (such first occurrence, an "Early
Termination Event"), the Trust shall be dissolved and terminated
in accordance with the terms hereof:
(i) the occurrence of a Bankruptcy Event,
dissolution or liquidation of, in respect of, the Depositor,
or the dissolution of the Trust pursuant to judicial decree;
(ii) the occurrence of a Special Event (as defined
in the Supplemental Indenture) and the election of the
Depositor to distribute the Junior Subordinated Notes to the
Preferred Securityholders; provided, however, that if at the
time there is available to the Trust the opportunity to
eliminate the Special Event within 90 days after the
occurrence thereof by taking some ministerial action, such
47
as filing a form or making an election, or using some other
reasonable measure, which would have no adverse effect on
the Trust, the Depositor or the Holders, the Trust (through
the Administrative Trustees) will pursue such measure in
lieu of redemption or dissolution; and
(iii) the payment at maturity or redemption of all
of the Junior Subordinated Notes, and the consequent payment
of the Preferred Securities.
Section 9.03 Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby
shall terminate upon the latest to occur of the following: (a)
the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust or upon the redemption of all of the
Trust Securities pursuant to Section 4.02, of all amounts or
instruments required to be distributed hereunder upon the final
payment of the Trust Securities; (b) the payment of any expenses
owed by the Trust; and (c) the discharge of all administrative
duties of the Administrative Trustees, including the performance
of any tax reporting obligations with respect to the Trust or the
Securityholders.
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii)
of Section 9.02 occurs, the Junior Subordinated Notes shall not
be distributed unless prior thereto, the Property Trustee shall
have received an Opinion of Counsel experienced in such matters
to the effect that the Holders will not recognize any gain or
loss for United States federal income tax purposes as a result of
such dissolution and distribution of Junior Subordinated Notes.
(b) In connection with a distribution of the Junior
Subordinated Notes, each Holder of Trust Securities shall be
entitled to receive, after the satisfaction of creditors of the
Trust (as evidenced by a certificate of the Administrative
Trustees), a Like Amount of Junior Subordinated Notes. Notice of
liquidation shall be given by the Trustees by first-class mail,
postage prepaid, mailed not later than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities
at such Holder's address appearing in the Security Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation
Date, the Trust Securities will no longer be deemed to be
outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a Like
Amount of Junior Subordinated Notes; and
48
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for Junior Subordinated Notes.
(c) In order to effect the liquidation of the Trust and
distribution of the Junior Subordinated Notes to Securityholders,
the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall
establish such procedures as it shall deem appropriate to affect
the distribution of Junior Subordinated Notes in exchange for the
Outstanding Trust Securities Certificates.
(d) After the Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Junior Subordinated Notes will be
issued to Holders of Trust Securities Certificates, upon
surrender of such certificates to the Administrative Trustees or
their agent for exchange, (iii) any Trust Securities Certificates
not so surrendered for exchange will be deemed to represent a
Like Amount of Junior Subordinated Notes, accruing interest at
the rate provided for in the Junior Subordinated Notes from the
last Distribution Date on which a Distribution was made on such
Trust Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Junior Subordinated Notes) and
(iv) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Junior
Subordinated Notes upon surrender of Trust Securities
Certificates.
(e) The Depositor will use its best efforts to have the
Junior Subordinated Notes that are distributed in exchange for
the Preferred Securities to be listed on such securities exchange
as the Preferred Securities are then listed. The Depositor may
elect to have the Junior Subordinated Notes issued in book-entry
form to the Clearing Agency or its nominee pursuant to a
Certificate Depository Agreement substantially in the form of
Exhibit B.
Section 9.05 Bankruptcy. If an early termination event
specified in clause (i) of Section 9.02 has occurred, the Trust
shall be liquidated. The Property Trustee shall, subject to the
receipt of an Opinion of Counsel to the effect set forth in
Section 9.04(a), distribute the Junior Subordinated Notes to the
Securityholders as provided in Section 9.04, unless such
distribution is determined by the Administrative Trustees not to
be practical, in which event the Holders will be entitled to
receive out of the assets of the Trust available for distribution
to Securityholders, after satisfaction of liabilities to
49
creditors, an amount equal to the Liquidation Amount per Trust
Security plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation
Distribution"). If such Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available
to pay in full the aggregate Liquidation Distribution, then,
subject to the next succeeding sentence, the amounts payable by
the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holder of the Common
Securities will be entitled to receive Liquidation Distributions
upon any such dissolution, winding-up or termination pro rata
(determined as aforesaid) with Holders of Preferred Securities,
except that, if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over
the Common Securities.
ARTICLE X
Miscellaneous Provisions
Section 10.01 Guarantee by the Depositor. Subject to the
terms and conditions hereof, the Depositor irrevocably and
unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and
all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than obligations of the Trust to
pay to Holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be. This guarantee is intended to be
for the benefit, of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received
notice hereof.
Section 10.02 Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial
or otherwise, in a Trust Security shall not operate to terminate
this Trust Agreement, nor entitle the legal representatives or
heirs of such person or any Securityholder for such person, to
claim an accounting, take any action or bring any proceeding in
and for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section 10.03 Amendment.
(a) This Trust Agreement may be amended from time to time
by the Trustees and the Depositor, without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement
50
any provision herein or therein which may be inconsistent with
any other provision herein or therein, or to make any other
provisions with respect to matters or questions arising under
this Trust Agreement, which shall not be inconsistent with the
other provisions of this Trust Agreement, provided, however, that
any such amendment shall not adversely affect in any material
respect the interests of any Securityholder or (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Trust will
not be classified as other than a grantor trust for United States
federal income tax purposes at any time that any Trust Securities
are outstanding; provided, however, that, except in the case of
clause (ii), such action shall not adversely affect in any
material respect the interests of any Securityholder and, in the
case of clause (i), any amendments of this Trust Agreement shall
become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 10.03(c) hereof, any
provision in this Trust Agreement may be amended by the Trust or
the Trustees with (i) the consent of Trust Securityholders
representing not less than 66-2/3% (based upon Liquidation
Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect
that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment will not affect the
Trust's status as a grantor trust for United States federal
income tax purposes or the Trust's exemption from status of an
"investment company" under the Investment Company Act of 1940, as
amended.
(c) In addition to and notwithstanding any other provision
in this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance with
Section 6.03 or 6.06 hereof), this Trust Agreement may not be
amended to (i) change the amount or timing of any Distribution on
the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust
Securities as of a specified date, (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such
payment on or after such date, or (iii) change the consent
required pursuant to Section 10.03.
(d) Notwithstanding any other provisions of this Trust
Agreement, the Trustees shall not enter into or consent to any
amendment to this Trust Agreement which would cause the Trust to
fail or cease to qualify for the exemption from status of an
"investment company" under the Investment Company Act of 1940, as
amended, afforded by Rule 3a-5 thereunder.
(e) Without the consent of the Depositor, this Trust
Agreement may not be amended in a manner which imposes any
51
additional obligation on the Depositor. In executing any
amendment permitted by this Trust Agreement, the Trustees shall
be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted
by this Trust Agreement. The Trustees may, but shall not be
obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or
liabilities under this Trust Agreement or otherwise.
(f) In the event that any amendment to this Trust Agreement
is made, the Administrative Trustees shall promptly provide to
the Depositor a copy of such amendment.
Section 10.04 Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 10.05 Governing Law. THIS TRUST AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST
AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE
TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE; PROVIDED THAT THE
IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE SHALL BE
GOVERNED BY NEW YORK LAW.
Section 10.06 Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to
both the Trust and the Trustees, including any successor by
operation of law.
Section 10.07 Headings. The Article and Section headings
are for convenience only and shall not affect the construction of
this Trust Agreement.
Section 10.08 Notice and Demand. Any notice, demand or
other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or
upon any Securityholder or the Depositor may be given or served
in writing by deposit thereof, postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each
case, addressed, (i) in the case of a Preferred Securityholder,
to such Preferred Securityholder as such Securityholder's name
and address appear on the Securities Register and (ii) in the
case of the Common Securityholder or the Depositor, to Alabama
Power Company, 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000,
Attention: Treasurer, Facsimile No. (000) 000-0000, with a copy
to the Assistant Secretary, Facsimile No. (000) 000-0000. Such
notice, demand or other communication to or upon a Securityholder
52
shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust or the Trustees shall be
given in writing addressed (until another address is published by
the Trust) as follows: (i) with respect to the Property Trustee
and the Delaware Trustee, Chemical Bank, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: Corporate Trustee
Administration Department; Chemical Bank Delaware, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Department, as the case may be; and (ii) with respect to the
Administrative Trustees, to them at the address above for notices
to the Depositor, marked Attention: Administrative Trustees of
Alabama Power Capital Trust I c/o Treasurer. Such notice, demand
or other communication to or upon the Trust or the Trustees shall
be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the applicable Trustee.
Section 10.09 Agreement Not to Petition. Each of the
Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders, that it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in
writing not to take such action and should be stopped and
precluded therefrom and such other defenses, if any, as counsel
for the Trustees or the Trust may assert. The provisions of this
Section 10.09 shall survive the termination of this Trust
Agreement.
Section 10.10 Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this
Trustee Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is
a Trustee for the purposes of the Trust Indenture Act.
53
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in
this Trust Agreement by any of the provisions of the Trust
Indenture Act, such required provision shall control.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Trust
Securities as equity securities representing interests in the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
54
IN WITNESS WHEREOF, the parties hereto have executed this
Trust Agreement or have caused this Trust Agreement to be
executed on their behalf, all as of the day and year first above
written.
ALABAMA POWER COMPANY
By:
Art X. Xxxxxxx
Its Vice President, Secretary
and Treasurer
CHEMICAL BANK,
as Property Trustee
By:
Title:
CHEMICAL BANK DELAWARE,
as Delaware Trustee
By:
Title:
XXXXXXX X. XXXXX, XX.,
as Administrative Trustee
J. XXXXX XXXXXXX,
as Administrative Trustee
55
EXHIBIT A
RESTATED CERTIFICATE OF TRUST
OF
ALABAMA POWER CAPITAL TRUST I
THIS RESTATED CERTIFICATE OF TRUST of Alabama Power Capital
Trust I (the "Trust"), a business trust under the Delaware
Business Trust Act (12 Del. C. Section 3801, et seq.), dated
January ___, 1996, is being duly executed and filed by the
undersigned, as trustees of the Trust, to amend and restate the
original Certificate of Trust of the Trust.
1. Name. The name of the business trust being formed
hereby is Alabama Power Capital Trust I.
2. Original Certificate. The original Certificate of the
Trust was filed on November 8, 1995.
3. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the
State of Delaware is Chemical Bank Delaware, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000.
4. Effective Date. This Restated Certificate of Trust
shall be effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of
the Trust have executed this Restated Certificate of Trust as of
the date first above written.
CHEMICAL BANK DELAWARE,
as Delaware Trustee
By:
Name:
Title:
CHEMICAL BANK,
as Property Trustee
By:
Name:
Title:
Exhibit A - Page 1
XXXXXXX X. XXXXX, XX.,
as Administrative Trustee
By:
Name:
Title:
J. XXXXX XXXXXXX,
as Administrative Trustee
By:
Name:
Title:
Exhibit A - Page 2
EXHIBIT B
_______________, 1996
The Depository Trust Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10041-0099
Attention: General Counsel's Office
Re: Alabama Power Capital Trust I
7.375% Trust Preferred Securities
Ladies and Gentlemen:
The purpose of this letter is to set out certain matters
relating to the above-referenced Preferred Securities (CUSIP No.
_________ (the "Securities") of Alabama Power Capital Trust I, a
Delaware statutory business trust (the "Trust"). The Securities
are guaranteed to the extent set forth in the Prospectus relating
to the Securities dated January 17, 1996 by Alabama Power
Company, an Alabama corporation. The Trust is selling the
Securities to certain underwriters (the "Underwriters") pursuant
to an Underwriting Agreement dated January 17, 1996, and the
Underwriters wish to take delivery of the Securities through The
Depository Trust Company ("DTC"). The Trust is acting as
transfer agent and registrar with respect to the Securities.
Chemical Bank, in its capacity as Property Trustee of the Trust,
will act as paying agent in relation to the Securities (the
"Property Trustee").
To induce DTC to accept the Securities as eligible for
deposit at DTC, and to act in accordance with its rules with
respect to the Securities, the Trust and the Property Trustee
severally, as set forth below each make the following
representations to DTC.
1. Before the closing of the sale of the Securities to the
Underwriters, which is expected to occur on or about
______________, 1996 there shall be deposited with DTC one or
more global certificates (the "Global Certificate") registered in
the name of DTC's nominee, Cede & Co., for 3,880,000 Securities.
2. The Amended and Restated Trust Agreement dated as of
January 1, 1996 provides for the voting by holders of the
Securities under certain circumstances. The Trust shall
establish a record date for such purposes and shall, to the
extent possible, give DTC notice of such record date not less
than 15 calendar days in advance of such record date. Notices to
DTC pursuant to this paragraph by telecopy shall be sent to DTC's
Reorganization Department at (000) 000-0000 or (000) 000-0000,
Exhibit B - Page 1
and receipt of such notices shall be confirmed by telephoning
(000) 000-0000. Notices to DTC pursuant to this paragraph by
mail or by other means shall be sent to DTC's Reorganization
Department as indicated in paragraph 6.
3. In the event of stock split, conversion,
recapitalization, reorganization or any other similar transaction
resulting in the cancellation of all or any part of the
Securities outstanding, the Trust shall send DTC a notice of such
event 5 business days prior to the effective date of such event.
4. In the event of a distribution with respect to the
Securities outstanding, the Property Trustee shall send DTC a
notice specifying the amount of and conditions, if any,
applicable to such payment or distribution. Such notice shall be
sent to DTC by a secure means (e.g., legible telecopy, registered
or certified mail, overnight delivery) in a timely manner
designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before the
record date for such distribution. (The Property Trustee shall
have a method to verify subsequently the use of such means and
the timeliness of such notice.) After establishing the amount of
payment to be made on the Securities, the Property Trustee will
notify DTC's Dividend Department of such payment 5 business days
prior to payment date.
5. In the event of a redemption by the Trust of the
Securities, notice to holders of the Securities by the Trust
specifying the terms of the redemption shall be sent to DTC not
less than 30 days prior to such event by a secure means in the
manner set forth in the preceding paragraph. Such redemption
notice shall be sent to DTC's Call Notification Department at
(000) 000-0000 or 4190, and receipt of such notice shall be
confirmed by telephoning (000) 000-0000. Notice by mail or by
any other means shall be sent to:
Call Notification Department
The Depository Trust Company
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000-0000
6. In the event of any invitation to tender the
Securities, notice by the Trust to holders of the Securities
specifying the terms of the tender shall be sent to DTC by the
Trust by a secure means by the close of business on the Business
Day before such notice is given to such Holders. Notices to DTC
pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes),
shall be sent by telecopy to DTC's Reorganization Department at
(000) 000-0000 or (000) 000-0000, and receipt of such notices
shall be confirmed by telephoning (000) 000-0000, or by mail or
any other means to:
Exhibit B - Page 2
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
7. All notices and payment advices sent to DTC shall
contain the CUSIP number of the Securities and the accompanying
description of the Securities, which, as of the date of this
letter, is "Alabama Power Capital Trust I, 7.375% Trust Preferred
Securities."
8. Notices to DTC's Dividend Department by telecopy shall
be sent to (000) 000-0000. Such notices by mail or by any other
means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Trust shall confirm DTC's receipt of such telecopy by
telephoning the Dividend Department at (000) 000-0000.
9. Payments of cash distributions, including payments on
redemption, with respect to the Securities evidenced by the
Global Certificate shall be received by Cede & Co., as nominee of
DTC, or its registered assigns in same day funds on each payment
date (or in accordance with existing arrangements between the
Property Trustee and DTC). Such payments shall be made payable
to the order of Cede & Co.
10. Other cash payments shall be received by Cede & Co., as
a nominee of DTC, or its registered assigns in next day funds on
each payment date (or in accordance with existing arrangements
between the Property Trustee and DTC). Such payments shall be
made payable to the order of Cede & Co., and shall be addressed
as follows:
NFDS Redemption Department
The Depository Trust Department
7 Hanover Square, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
11. DTC may direct the Trust and the Property Trustee to
use any other telecopy number or address of DTC as the number or
address to which notices or payments may be sent.
12. In the event of a conversion, redemption, or any other
similar transaction (e.g., tender made and accepted in response
to the Trust's invitation) necessitating a reduction in the
Exhibit B - Page 3
aggregate number of Securities outstanding, DTC, in its
discretion: (a) may request the Trust to issue and authenticate
a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and
amount of such reduction.
13. DTC may discontinue its services as a securities
depositary with respect to the Global Certificate at any time by
giving reasonable notice to the Trust (at which time DTC will
confirm with the Trust the aggregate number of Securities
deposited with it) and discharging its responsibilities with
respect thereto under applicable law. Under such circumstances,
at DTC's request the Trust shall cooperate fully with DTC by
taking prompt appropriate action to make alternative arrangements
for book-entry settlement for the Securities or to make available
one or more separate certificates evidencing Securities, to any
participant having Securities credited to its DTC account.
14. In the event that the Trust determines that beneficial
owners of Securities shall be able to obtain certificated
Securities the Trust shall notify DTC of the availability of
certificates. In such event, the Trust shall issue, transfer and
exchange certificates in appropriate amounts, as required by DTC
and others.
15. Nothing herein shall require the Trustees to advance
their own funds for any purposes.
This letter may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original
but all such counterparts shall together constitute but one and
the same instrument.
Very truly yours,
Alabama Power Capital Trust I
By:
Name:
Title: Administrative Trustee
CHEMICAL BANK,
as Property Trustee of
Alabama Power Capital Trust I
By:
Name:
Title:
Exhibit B - Page 4
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:
Authorized Officer
Exhibit B - Page 5
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1 120,000
Certificate Evidencing Common Securities
of
Alabama Power Capital Trust I
Common Securities
(liquidation amount $25 per Common Security)
Alabama Power Capital Trust I, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"),
hereby certifies that Alabama Power Company (the "Holder") is the
registered owner of one hundred twenty thousand (120,000) common
securities of the Trust representing undivided beneficial
ownership interests in the assets of the Trust and designated the
Common Securities (liquidation amount $25 per Common Security)
(the "Common Securities"). In accordance with Section 5.10 of
the Trust Agreement (as defined below) the Common Securities are
not transferable, except by operation of law, and any attempted
transfer hereof shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of January 1, 1996, as the same may be amended
from time to time (the "Trust Agreement"), including the
designation of the terms of the Common Securities as set forth
therein. The Trust will furnish a copy of the Trust Agreement to
the Holder without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
Exhibit C - Page 1
IN WITNESS WHEREOF, the Administrative Trustees of the Trust
have executed this certificate this 24th day of January, 1996.
Alabama Power Capital Trust I
By:
XXXXXXX X. XXXXX, XX.,
as Administrative Trustee
By:
J. XXXXX XXXXXXX,
as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the
within-mentioned Trust Agreement.
as Administrative Trustee
Exhibit C - Page 2
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agree-
ment") is made as of ___________ ___, 1996, between Alabama Power
Company, an Alabama corporation (the "Company"), and Alabama
Power Capital Trust I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its 7.375% Common
Securities (the Common Securities) to and receive Junior
Subordinated Notes from the Company and to issue and sell Alabama
Power Capital Trust I 7.375% Trust Preferred Securities, Series A
(the "Preferred Securities") with such powers, preferences and
special rights and restrictions as are set forth in the Amended
and Restated Trust Agreement of the Trust dated as of January 1,
1996 as the same may be amended from time to time (the "Trust
Agreement"); and
WHEREAS, the Company is the issuer of the Junior
Subordinated Notes.
NOW, THEREFORE, in consideration of the purchase by each
holder of the Preferred Securities, which purchase the Company
hereby agrees shall benefit the Company and which purchase the
Company acknowledges will be made in reliance upon the execution
and delivery of this Agreement, the Company and the Trust hereby
agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Company. Subject to the
terms and conditions hereof, the Company hereby irrevocably and
unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and
all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than obligations of the Trust to
pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be
for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received
notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of
Exhibit D - Page 1
Preferred Securities or any Beneficiary must restore payment of
any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof
by the Company and Chemical Bank, as guarantee trustee, or under
this Agreement for any reason whatsoever. This Agreement is
continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. The Company hereby waives
notice of acceptance of this Agreement and of any Obligation to
which it applies or may apply, and the Company hereby waives
presentment, demand for payment, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices
and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of the Company under this 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 extension of time for the payment the Trust of
all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in
connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or
exercise any right, privilege, power or remedy conferred on
the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or
extension of any kind; or
(c) 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 or, or other similar proceedings
affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, the Company with respect to the
happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against the Company and the Company waives any
right or remedy to require that any action be brought against the
Trust or any other person or entity before proceeding against the
Company.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and
agreements contained in this Agreement shall bind the successors,
Exhibit D - Page 2
assigns, receivers, trustees and representatives of the Company
and shall inure to the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to-wit:
Alabama Power Capital Trust I
c/o Chemical Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.:
Attention: Corporate Trustee
Administration Department
Alabama Power Company
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.:
Attention:
Section 2.04. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF ALABAMA.
THIS AGREEMENT is executed as of the date and year first
above written.
ALABAMA POWER COMPANY
By:
Name:
Title:
ALABAMA POWER CAPITAL TRUST I
By:
____________________________,
as
Administrative Trustee
Exhibit D - Page 3
EXHIBIT E
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York
Corporation ("DTC"), to Alabama Power Capital Trust I or its
agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative
of DTC (and any payment made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC),
any transfer, pledge, or other use hereof for value or otherwise
by or to any person is wrongful inasmuch as the registered owner
thereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
3,880,000
P-1 CUSIP NO. 000000000
Certificate Evidencing Preferred Securities
of
Alabama Power Capital Trust I
7.375% Trust Preferred Securities,
(Liquidation amount $25 per Preferred Security)
Alabama Power Capital Trust I, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"),
hereby certifies that Cede & Co. (the "Holder") is the registered
owner of three million eight hundred eighty thousand (3,880,000)
preferred securities of the Trust representing undivided
beneficial ownership interest in the assets of the Trust and
designated the Alabama Power Capital Trust I 7.375% Trust
Preferred Securities (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities
are transferable on the books and records of the Trust, in person
or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as
provided in Section 5.04 of the Trust Agreement (as defined
below). The designations, rights, privileges, restrictions,
references and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the
Preferred Securities represented hereby are issued and shall in
all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust, dated as of
January 1, 1996, as the same may be amended from time to time
(the "Trust Agreement") including the designation of the terms of
Preferred Securities as set forth therein. The holder of this
certificate is entitled to the benefits of a guarantee by Alabama
Power Company, an Alabama corporation (the "Company") pursuant to
Exhibit E - Page 1
a Guarantee Agreement between the Company and Chemical Bank, as
guarantee trustee, dated as of January 1, 1996 (the "Guarantee")
to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the holder of this
certificate without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
Exhibit E - Page 2
IN WITNESS WHEREOF, the Administrative Trustees of the Trust
have executed this certificate this 24th day of January, 1996.
ALABAMA POWER CAPITAL TRUST I
By:
XXXXXXX X. XXXXX, XX.,
as Administrative Trustee
By:
J. XXXXX XXXXXXX,
as Administrative Trustee
CERTIFICATE OF AUTHORIZATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
as Administrative Trustee
Exhibit E - Page 3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
(Insert assignee's social security or tax identification umber)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Security Certificate on the
books of the Trust. The agent may substitute another to act for
him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
