Exhibit 4.5
ALABAMA POWER CAPITAL TRUST III
AMENDED AND RESTATED
TRUST AGREEMENT
among
ALABAMA POWER COMPANY, as Depositor,
THE CHASE MANHATTAN BANK, as Property Trustee,
CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee,
and
WILLIAM E. ZALES, JR. and J. RANDY DERIEUX,
as Administrative Trustees
Dated as of February 1, 1999
ALABAMA POWER CAPITAL TRUST III
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Act Section Trust Agreement 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).....................................................................11.10
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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
Page
Article I Defined Terms.............................................................................1
Section 1.01 Definitions...................................................................1
Article II Establishment of the Trust..............................................................17
Section 2.01 Name.........................................................................17
Section 2.02 Offices of the Trustees; Principal Place of Business.........................17
Section 2.03 Initial Contribution of Trust Property; Organizational Expenses..............18
Section 2.04 Issuance of the Preferred Securities.........................................18
Section 2.05 Subscription and Purchase of Junior Subordinated Notes;
Issuance of the Common Securities............................................18
Section 2.06 Declaration of Trust.........................................................18
Section 2.07 Authorization to Enter into Certain Transactions.............................19
Section 2.08 Assets of Trust..............................................................24
Section 2.09 Title to Trust Property......................................................24
Section 2.10 Mergers and Consolidations of the Trust......................................24
Article III Payment Account........................................................................25
Section 3.01 Payment Account..............................................................25
Article IV Distributions; Redemption...............................................................25
Section 4.01 Distributions................................................................25
Section 4.02 Distribution Rate............................................................27
Section 4.03 Distribution Periods.........................................................28
Section 4.04 Redemption...................................................................30
Section 4.05 Subordination of Common Securities and Distributions.........................32
Section 4.06 Payment Procedures...........................................................32
Section 4.07 Tax Returns and Reports......................................................33
Article V Trust Securities Certificates............................................................33
Section 5.01 Initial Ownership............................................................33
Section 5.02 The Trust Securities Certificates............................................33
Section 5.03 Authentication of Trust Securities Certificates..............................33
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates......................................................34
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates...........34
Section 5.06 Persons Deemed Securityholders...............................................35
Section 5.07 Access to List of Securityholders' Names and Addresses.......................35
Section 5.08 Maintenance of Office or Agency..............................................36
Section 5.09 Appointment of Paying Agent..................................................36
Section 5.10 Ownership of Common Securities by Depositor..................................36
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.......................................................37
Section 5.12 Notices to Clearing Agency...................................................37
Section 5.13 Definitive Preferred Securities Certificates.................................38
Section 5.14 Rights of Securityholders....................................................38
Article VI Acts of Securityholders; Meetings; Voting...............................................39
Section 6.01 Limitations on Voting Rights.................................................39
Section 6.02 Notice of Meetings...........................................................40
Section 6.03 Meetings of Preferred Securityholders........................................41
Section 6.04 Voting Rights................................................................41
Section 6.05 Proxies, etc.................................................................41
Section 6.06 Securityholder Action by Written Consent.....................................41
Section 6.07 Record Date for Voting and Other Purposes....................................42
Section 6.08 Acts of Securityholders......................................................42
Section 6.09 Inspection of Records........................................................43
Article VII Representations and Warranties of the Trustees.........................................43
Section 7.01 Representations and Warranties of the Trustees...............................43
Article VIII The Trustees..........................................................................44
Section 8.01 Certain Duties and Responsibilities..........................................44
Section 8.02 Notice of Defaults...........................................................45
Section 8.03 Certain Rights of Property Trustee...........................................45
Section 8.04 Not Responsible for Recitals or Issuance of Securities.......................46
Section 8.05 May Hold Securities..........................................................46
Section 8.06 Compensation; Fees; Indemnity................................................46
Section 8.07 Trustees Required; Eligibility...............................................47
Section 8.08 Conflicting Interests........................................................47
Section 8.09 Co-Trustees and Separate Trustee.............................................48
Section 8.10 Resignation and Removal; Appointment of Successor............................49
Section 8.11 Acceptance of Appointment by Successor.......................................51
Section 8.12 Merger, Conversion, Consolidation or Succession to Business..................51
Section 8.13 Preferential Collection of Claims Against Depositor or Trust.................51
Section 8.14 Reports by Property Trustee..................................................52
Section 8.15 Reports to the Property Trustee..............................................52
Section 8.16 Evidence of Compliance with Conditions Precedent.............................52
Section 8.17 Number of Trustees...........................................................53
Section 8.18 Delegation of Power..........................................................53
Section 8.19 Enforcement of Rights of Property Trustee by Securityholders.................53
Section 8.20 Delaware Trustee.............................................................54
Article IX Termination and Liquidation.............................................................55
Section 9.01 Termination Upon Expiration Date.............................................55
Section 9.02 Early Termination............................................................55
Section 9.03 Termination..................................................................55
Section 9.04 Liquidation..................................................................55
Section 9.05 Bankruptcy...................................................................56
Article X The Auction..............................................................................57
Section 10.01 Applicable Rate..............................................................57
Section 10.02 Auction Agent................................................................57
Section 10.03 Broker-Dealers...............................................................58
Section 10.04 Purchaser's Letter...........................................................58
Section 10.05 Auction Date.................................................................60
Section 10.06 Orders.......................................................................60
Section 10.07 Existing Holders.............................................................60
Section 10.08 Potential Holders............................................................62
Section 10.09 Extension Period.............................................................63
Section 10.10 Determination of Distribution Rate in an Auction.............................63
Section 10.11 Acceptance and Rejection of Orders and Allocation of Preferred Securities....65
Section 10.12 Notification of Results......................................................67
Article XI Miscellaneous Provisions................................................................68
Section 11.01 Guarantee by the Depositor...................................................68
Section 11.02 Limitation of Rights of Securityholders......................................68
Section 11.03 Amendment....................................................................68
Section 11.04 Separability.................................................................69
Section 11.05 GOVERNING LAW................................................................70
Section 11.06 Successors...................................................................70
Section 11.07 Headings.....................................................................70
Section 11.08 Notice and Demand............................................................70
Section 11.09 Agreement Not to Petition....................................................71
Section 11.10 Conflict with Trust Indenture Act............................................71
Exhibit A..............................................................................................A-1
Exhibit B..............................................................................................B-1
Exhibit C..............................................................................................C-1
Exhibit D..............................................................................................D-1
Exhibit E..............................................................................................E-1
AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of
February 1, 1999, by and among (i) Alabama Power Company, an Alabama corporation
(the "Depositor" or the "Company"), (ii) The Chase Manhattan 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) Chase Manhattan 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"), (iv) William E. Zales, Jr.,
an individual, and J. Randy DeRieux, an individual, as administrative 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 that certain Trust Agreement,
dated as of November 27, 1996 (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 27, 1996; 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, William E. Zales, Jr. and J.
Randy DeRieux 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 parties and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
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 Second Supplemental 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 and continued 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.
"Applicable Percentage" has the meaning specified in the
definition of "Maximum Applicable Rate."
"Applicable Rate" means the Distribution Rate determined
pursuant to the auction procedures set forth in Article X.
"Auction" means the procedure by which the Applicable Rate
shall be determined in accordance with the Auction Procedures.
"Auction Agent" means The Chase Manhattan Bank, its successors
or assigns, or such other bank or trust company appointed to such capacity by
the Administrative Trustees.
"Auction Agent Agreement" means the agreement among the
Company, the Trust and The Chase Manhattan Bank, as auction agent, dated as of
February 1, 1999.
"Auction Date" means the date an Auction is held at the end of
each Distribution Period to determine the Applicable Rate for the subsequent
Distribution Period, as provided in Section 10.05.
"Auction Procedures" means the procedures by which the Auction
Agent will conduct Auctions, as set forth in Article X.
"Available Preferred Securities" has the meaning specified in
Section 10.10(a).
"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 such 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 11.09.
"Bid" means (i) with respect to a Potential Holder, an Order
indicating the number of Preferred Securities that such Potential Holder offers
to purchase if the Applicable Rate for the Preferred Securities for the next
Distribution Period is not less than the rate per annum specified in such Bid
and (ii) with respect to an Existing Holder, an Order indicating the number of
Preferred Securities that such Existing Holder desires to continue to hold;
provided that the Applicable Rate for the next Distribution Period is not less
than the rate per annum specified in such Bid.
"Bidder" means an Existing Holder or a Potential Holder placing
an Order.
"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
certificates representing Preferred Securities issued in global, fully
registered form to the Clearing Agency as described in Section 5.11.
"Broker-Dealer" has the meaning specified in Section 10.03.
"Business Day" means a day other than (i) a Saturday or a
Sunday, (ii) a day on which banks in New York, New York are authorized or
obligated by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office or the Indenture Trustee's principal corporate trust
office is closed for business or (iv) a day on which the New York Stock Exchange
is closed.
"Calendar Period" with respect to any date means a period of
fourteen consecutive calendar days ending ten calendar days prior to such date.
"Certificate Depository Agreement" means the agreement among
the Trust, the Property Trustee and The Depository Trust Company, as the initial
Clearing Agency, dated as of February 24, 1999, relating to the Preferred
Securities Certificates.
"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.
"Commercial Paper Rate," on any date, means in the case of any
Short-Term Distribution Period of (a) fewer than 45 days, the interest
equivalent of the 30-day rate, (b) 45 days or more but fewer than 70 days, the
interest equivalent of the 60-day rate, (c) 70 days or more but fewer than 85
days, the arithmetic average of the interest equivalent of the 60-day and 90-day
rates, (d) 85 days or more but fewer than 120 days, the interest equivalent of
the 90-day rate, (e) 120 days or more but fewer than 148 days, the arithmetic
average of the interest equivalent of the 90-day and 180-day rates, or (f) 148
days or more but fewer than 184 days, the interest equivalent of the 180-day
rate, in each case, on commercial paper placed on behalf of issuers whose
corporate bonds are rated AA by S&P or Aa by Moody's, or the equivalent of such
rating by another rating agency, as made available on a discount basis or
otherwise by the Federal Reserve Bank of New York for the Business Day
immediately preceding such date. In the event that the Federal Reserve Bank of
New York does not make available the needed rate or rates, then such rate will
be the arithmetic average of the interest equivalent of the rate or average of
rates, in each case, on commercial paper placed on behalf of such issuers, as
quoted on a discount basis or otherwise by Goldman, Sachs & Co. or, in lieu
thereof, their respective affiliates or successors that are engaged in buying or
selling commercial paper ("Commercial Paper Dealers"), to the Auction Agent as
of the close of business on the Business Day immediately preceding such date. In
the event that the Federal Reserve Bank of New York does not make available a
required rate and if any Commercial Paper Dealer does not quote a rate required
to determine the Commercial Paper Rate, the Commercial Paper Rate will be
determined on the basis of the quotation or quotations furnished by the
remaining Commercial Paper Dealer or Commercial Paper Dealers and any Substitute
Commercial Paper Dealer or Substitute Commercial Paper Dealers selected by the
Administrative Trustees to provide such rate or rates not being supplied by any
Commercial Paper Dealer or Commercial Paper Dealers, as the case may be, or, if
the Administrative Trustees do not select any such Substitute Commercial Paper
Dealer or Substitute Commercial Paper Dealers, by the remaining Commercial Paper
Dealer or Commercial Paper Dealers. For purposes of this definition, "interest
equivalent" means the equivalent yield on a 360-day basis of a discount basis
security to an interest bearing security. "Substitute Commercial Paper Dealers"
will mean any substitute recognized dealers in commercial paper selected by the
Administrative Trustees.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount of $50,000 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 at which its corporate trust business shall be principally administered.
"Default Rate" is the higher of: (i) the product of the
Commercial Paper Rate applicable to a 28-day Short-Term Distribution Period,
determined as of the date of the related Event of Default that gives rise to the
application of such Default Rate, multiplied by the Applicable Percentage (as in
effect on such date) that would be applicable if the Preferred Securities had a
Prevailing Rating of below "baa3"/BBB-; or (ii) the Distribution Rate in effect
for the Distribution Period in respect of which such Event of Default occurred.
"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.
"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 Payment Date" means each day on which
Distributions are payable determined based on the length of the applicable
Distribution Period.
"Distribution Period" means the period for which Distributions
are payable.
"Distribution Rate" means the rate at which Distributions will
accrue in respect of any Distribution Period, as determined pursuant to the
terms of this Trust Agreement whether by the Auction Procedures or otherwise.
"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 Trust in the payment of any
Distribution when it becomes due and payable, and continuation
of such default for a period of 30 days or, if the
Distribution Period in which such default occurs is less than
32 days, the continuation of such default for a period that is
two days less than the length of such Distribution Period; or
(iii) default by the Trust 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 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 Trust.
"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.
"Existing Holder" means a person who has signed and delivered
a Purchaser's Letter (if required to do so by its Broker-Dealer) and is listed
as the beneficial owner of the Preferred Securities in the records of the
Auction Agent or such beneficial owner's Broker-Dealer, who may act as the agent
of the Auction Agent for the limited purpose of maintaining such information.
"Extension Period" has the meaning specified in Section 4.01(d).
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Final Distribution Period" has the meaning specified in Section
4.03(b).
"Guarantee" means the Guarantee Agreement executed and
delivered by the Company and The Chase Manhattan 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.
"Hold Order" has the meaning specified in Section 10.07(a).
"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 $51,550,000 aggregate
principal amount of the Depositor's Series C Junior Subordinated Notes due
February 28, 2029, 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.
"Liquidation Amount" means the stated amount of $50,000 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.
"Long-Term Distribution Period" means a Distribution Period of
365 days or longer.
"Maximum Applicable Rate" on any date means (i) with respect
to an Auction relating to a Short-Term Distribution Period of less than 184
days, the percentage of the Commercial Paper Rate and (ii) with respect to an
Auction relating to a Short-Term Distribution Period of 184 days or more or a
Long-Term Distribution Period, the percentage of the Treasury Index Rate, in
each case as of the close of business on the Business Day next preceding such
date, determined as set forth below based on the Prevailing Rating in effect at
the close of business on such Business Day (such percentage, the "Applicable
Percentage"):
Prevailing Rating* Applicable Percentage
"aa3"/AA-or above 150%
"A3"/A- 200%
"baa3"/BBB- 250%
Below "baa3"/BBB- 300%
* If two ratings do not fall in the same category set forth in this table, the
Applicable Percentage will be determined on the basis of the lower rating. For
example, a rating of "a3"/BBB+ would result in an Applicable Percentage of 250%.
"Minimum Applicable Rate" with respect to any date means (i)
with respect to an Auction relating to a Long-Term Distribution Period or a
Short-Term Distribution Period of 184 days or more, 58% of the Treasury Index
Rate at the close of business on the Business Day next preceding the related
Auction Date and (ii) with respect to an Auction relating to a Short-Term
Distribution Period of less than 184 days, 58% of the Commercial Paper Rate at
the close of business on the Business Day next preceding the related Auction
Date.
"Moody's" means Moody's Investors Service, Inc. or any successor
thereto.
"Non-Auction Rate" means a rate equal to either (i) the
Maximum Applicable Rate as in effect on the date of any failure to hold an
Auction (except during an Extension Period or during the continuance of an Event
of Default) or (ii) if an Auction is not held on two consecutive Auction Dates
and the Non-Auction Rate is applicable, the Non-Auction Rate will be the Special
Maximum Applicable Rate on the Business Day immediately preceding the first day
of the next Distribution Period.
"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.
"Order" means the communication to a Broker-Dealer by an
Existing Holder or a Potential Holder of the information necessary for the
Auction Agent to conduct an Auction pursuant to the Auction Procedures.
"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 Securities theretofore
authenticated and delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore canceled 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 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.
"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 Property 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.
"Potential Holder" means each prospective purchaser of a
Preferred Security who shall have executed and delivered a Purchaser's Letter
(if required by its Broker-Dealer) or who shall have submitted a Bid.
"Preferred Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount of $50,000 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.
"Prevailing Rating" of the Preferred Securities means:
(i) "aa3"/AA- or above if the Preferred Securities
have a rating of "aa3" or better by Moody's and AA- or better
by S&P;
(ii) if not "aa3"/AA- or above, then "a3"/A- if the
Preferred Securities have a rating of "a3" or better by
Moody's and A- or better by S&P;
(iii) if not "aa3"/AA- or above or "a3"/A-, then
"baa3"/BBB- if the Preferred Securities have a rating of
"baa3" or better by Moody's and BBB- or better by S&P; and
(iv) if not "aa3"/AA- or above, "a3"/A- or
"baa3"/BBB-, then below "baa3"/BBB.
"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.
"Purchaser's Letter" shall have the meaning specified in Section
10.04.
"Record Date" means, with respect to any Distribution Payment
Date, the opening of business on the Business Day immediately preceding such
Distribution Payment Date.
"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, except to the extent
otherwise provided with respect to redemptions during a Long-Term Distribution
Period.
"Relevant Trustee" shall have the meaning specified in Section
8.10.
"S&P"means Standard & Poor's Ratings Group or any successor
thereto.
"Securities Register" and "Securities Registrar" are described 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 is a beneficial owner within the meaning of the Delaware Business Trust
Act.
"Sell Order" has the meaning specified in Section 10.07(a).
"Short-Term Distribution Period" means a Distribution Period
of from seven to 364 days and always evenly divisible by seven.
"Special Maximum Applicable Rate" has the meaning specified in
Section 10.10(e).
"Special Securities" means securities that can, at the option
of the holder, be surrendered at face value in payment of any federal estate tax
or that provide tax benefits to the holder and are priced to reflect such tax
benefits or that were originally issued at a deep or substantial discount.
"Submission Deadline" has the meaning specified in Section 10.06.
"Submitted Bid" has the meaning specified in Section 10.10(a).
"Submitted Hold Order" has the meaning specified in Section
10.10(a).
"Submitted Order" has the meaning specified in Section 10.10(a).
"Submitted Sell Order" has the meaning specified in Section
10.10(a).
"Subordinated Indenture" means the Subordinated Note
Indenture, dated as of January 1, 1997, between the Depositor and the Indenture
Trustee, as supplemented by the First Supplemental Indenture by and between the
Depositor and the Indenture Trustee dated as of January 1, 1997 and the
Supplemental Indenture.
"Sufficient Clearing Bids" shall have the meaning set forth in
Section 10.10(b).
"Supplemental Indenture" means the Second Supplemental
Indenture, dated as of February 25, 1999, by and between the Depositor and the
Indenture Trustee.
"Ten-Year Average Yield" means the average yield to maturity
for actively traded marketable U.S. Treasury fixed interest rate securities
(adjusted to constant maturities of ten years).
"Ten-Year Constant Maturity Rate," on any date, means the
arithmetic average of the two most recent weekly per annum Ten-Year Average
Yields (or the one weekly per annum Ten-Year Average Yield, if only one such
yield is published during the Calendar Period with respect to such date), as
published weekly by the Federal Reserve Board during the Calendar Period with
respect to such date. In the event that the Federal Reserve Board does not
publish such a weekly per annum Ten-Year Average Yield during such Calendar
Period, then the Ten-Year Constant Maturity Rate with respect to such date shall
be the arithmetic average of the two most recent weekly per annum Ten-Year
Average Yields (or the one weekly per annum Ten-Year Average Yield, if only one
such yield is published during such Calendar Period), as published weekly during
such Calendar Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Administrative Trustees. In the event that
a per annum Ten-Year Average Yield is not published by the Federal Reserve Board
or by any Federal Reserve Bank or by any U.S. Government department or agency
during such Calendar Period, then the Ten-Year Constant Maturity Rate with
respect to such date will be the arithmetic average of the two most recent
weekly per annum average yields to maturity (or the one weekly per annum average
yield to maturity, if only one such yield is published during such Calendar
Period) for all of the actively traded marketable U.S. Treasury fixed interest
rate securities (other than Special Securities) then having maturities of not
less than eight nor more than 12 years, as published during such Calendar Period
by the Federal Reserve Board or, if the Federal Reserve Board does not publish
such yields, by any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Administrative Trustees. In the event that the
Administrative Trustees determine in good faith that for any reason the Auction
Agent cannot determine the Ten-Year Constant Maturity Rate with respect to such
date as provided above in this paragraph, then the Ten-Year Constant Maturity
Rate with respect to such date will be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such Calendar
Period for each of the issues of actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) with a final maturity
date not less than eight nor more than 12 years from the date of each such
quotation, as quoted daily for each Business Day in New York City (or less
frequently if daily quotations are not generally available) to the Auction Agent
by U.S. Government Securities Dealers. The Ten-Year Constant Maturity Rate will
be rounded to the nearest one one-hundredth of a percentage point.
"Thirty-Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of 30 years).
"Thirty-Year Constant Maturity Rate" shall mean, on any date,
the arithmetic average of the two most recent weekly per annum Thirty-Year
Average Yields (or the one weekly per annum Thirty-Year Average Yield, if only
one such yield shall be published during the relevant Calendar Period), as
published or reported weekly by the Federal Reserve Board during the Calendar
Period with respect to such date. In the event that the Federal Reserve Board
does not publish such a weekly per annum Thirty-Year Average Yield during such
Calendar Period, then the Thirty-Year Constant Maturity Rate with respect to
such date shall be the arithmetic average of the two most recent weekly per
annum Thirty-Year Average Yields (or the one weekly per annum Thirty-Year
Average Yield, if only one such yield shall be published weekly during such
Calendar Period), as published weekly during such Calendar Period by any Federal
Reserve Bank or by any U.S. Government department or agency selected by the
Administrative Trustees. In the event that a per annum Thirty-Year Average Yield
shall not be published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such Calendar Period,
then the Thirty-Year Constant Maturity Rate with respect to such date will be
the arithmetic average of the two most recent weekly per annum average yields to
maturity (or the one weekly per annum average yield to maturity, if only one
such yield shall be published during such Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate securities (other
than Special Securities) then having maturities of not less than 28 nor more
than 30 years, as published during such Calendar Period by the Federal Reserve
Board or, if the Federal Reserve Board shall not publish such yields, by any
Federal Reserve Bank or by any U.S. Government department or agency selected by
the Administrative Trustees. In the event that the Administrative Trustees
determine in good faith that for any reason the Auction Agent cannot determine
the Thirty-Year Constant Maturity Rate with respect to such date as provided
above in this paragraph, then the Thirty-Year Constant Maturity Rate with
respect to such date will be the arithmetic average of the per annum average
yields to maturity based upon the closing bids during such Calendar Period for
each of the issues of actively traded marketable U.S. Treasury fixed interest
rate securities (other than Special Securities) with a final maturity date not
less than 28 nor more than 30 years from the date of each such quotation, as
quoted daily for each Business Day in New York City (or less frequently if daily
quotations shall not be generally available) to the Auction Agent by U.S.
Government Securities Dealers. The Thirty-Year Constant Maturity Rate will be
rounded to the nearest one one-hundredth of a percentage point.
"Treasury Bill Rate," on any date, means the interest
equivalent of the arithmetic average of the two most recent weekly per annum
market discount rates (or the one weekly per annum market discount rate, if only
one such rate is published during the Calendar Period with respect to such date)
for three-month U.S. Treasury bills, as published weekly by the Federal Reserve
Board during the Calendar Period with respect to such date. In the event that
the Federal Reserve Board does not publish such a weekly per annum market
discount rate during such Calendar Period, then the Treasury Bill Rate for each
date will be the arithmetic average of the two most recent weekly per annum
market discount rates (or the one weekly per annum market discount rate, if only
one such rate is published during such Calendar Period) for three-month U.S.
Treasury bills, as published weekly during such Calendar Period by any Federal
Reserve Bank or by any U.S. Government department or agency selected by the
Administrative Trustees. In the event that a per annum market discount rate for
three-month U.S. Treasury bills is not published by the Federal Reserve Board or
by any Federal Reserve Bank or by any U.S. Government department or agency
during such Calendar Period, then the Treasury Bill Rate with respect to such
date will be the arithmetic average of the two most recent weekly per annum
market discount rates (or the one weekly per annum market discount rate, if only
one such rate is published during such Calendar Period) for all of the U.S.
Treasury bills then having maturities of not less than 80 nor more than 100
days, as published during such Calendar Period by the Federal Reserve Board or,
if the Federal Reserve Board shall not publish such rates, by any Federal
Reserve Bank or by any U.S. Government department or agency selected by the
Administrative Trustees. In the event that the Administrative Trustees determine
in good faith that for any reason no such U.S. Treasury bill rates are published
as provided above during such Calendar Period, then the Treasury Bill Rate for
such date will be the arithmetic average of the per annum market discount rates
based upon the closing bids during such Calendar Period for each of the issues
of marketable non-interest bearing U.S. Treasury securities with a maturity of
not less than 80 nor more than 100 days from the date of each such quotation, as
quoted daily for each Business Day in New York City (or less frequently if daily
quotations are not generally available) to the Auction Agent by U.S. Government
Securities Dealers. In the event that the Administrative Trustees determine in
good faith that for any reason the Auction Agent cannot determine the Treasury
Bill Rate for any date as provided above in this paragraph, the Treasury Bill
Rate for such date will be the arithmetic average of the per annum market
discount rates based upon the closing bids during such Calendar Period for each
of the issues of marketable interest-bearing U.S. Treasury securities with a
maturity of not less than 80 nor more than 100 days from the date of each such
quotation, as quoted daily for each Business Day in New York City (or less
frequently if daily quotations shall not be generally available) to the Auction
Agent by U.S. Government Securities Dealers. For purposes of this definition,
"interest equivalent" means the equivalent yield on a 360-day basis of a
discount basis security to an interest bearing security. The Treasury Bill Rate
will be rounded to the nearest one one-hundredth of a percentage point.
"Treasury Index Rate," on any date, means the interest
equivalent of the rate for direct obligations of the United States having a
maturity that is equal to, or, if not equal to, next shorter than, the length of
the applicable Distribution Period, as published weekly by the Federal Reserve
Board in "Federal Reserve Statistical Release H.15(519)--Selected Interest
Rates" or any successor publication, within five Business Days preceding such
date. If such statistical release is not published or is otherwise not available
or does not contain such information, the Treasury Index Rate will be the
arithmetic mean of the secondary market bid rates as of approximately 3:30 p.m.,
New York City time, on the Business Day immediately preceding such date, of U.S.
Government Securities Dealers furnished to the Auction Agent for the issue of
direct obligations of the United States, in an aggregate principal amount of at
least $1 million with a remaining maturity equal to, or next shorter than, the
length of such Distribution Period, as the case may be. If any U.S. Government
Securities Dealer does not quote a rate required to determine the Treasury Index
Rate, such rate shall be determined on the basis of the quotation or quotations
furnished by the remaining U.S. Government Securities Dealer or U.S. Government
Securities Dealers (if any) and any substitute U.S. Government Securities Dealer
or Dealers (each a "Substitute U.S. Government Securities Dealer") selected by
the Administrative Trustees to provide such rate or rates not being supplied by
any U.S. Government Securities Dealer or U.S. Government Securities Dealers, as
the case may be, or, if the Administrative Trustees do not select any such
Substitute U.S. Government Securities Dealer or Substitute U.S. Government
Securities Dealers, by the remaining U.S. Government Securities Dealer or U.S.
Government Securities Dealers; provided that, in the event that the
Administrative Trustees are unable to cause such quotations to be furnished to
the Auction Agent by such sources, the Administrative Trustees may cause the
Treasury Index Rate to be furnished to the Auction Agent by such alternative
source or sources as the Administrative Trustees in good faith deem to be
reliable. For purposes of this definition, "interest equivalent" means the
equivalent yield on a 360-day basis of a discount basis security to an interest
bearing security.
"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 and continued 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 Property Trustee 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 February 18, 1999, among the Trust, the Depositor and the
underwriters named therein.
"U.S.Government Securities Dealers" means at least three
recognized dealers in direct obligations of the United
States, selected by the Administrative Trustees.
"Winning Bid Rate" has the meaning specified in Section 10.
10(c).
Article II ..
Establishment of the Trust
Section 2.01 .....Name. The Trust continued hereby shall be known as "Alabama
Power Capital Trust III", 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 sue 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 The Chase Manhattan Bank, 450 West 33rd
Street, New York, New York 10001, or at such other address 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 1201
Market Street, Wilmington, Delaware, 19801, 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, 600 North 18th Street,
Birmingham, Alabama 35291, Attention: Treasurer. The principal place of business
of the Trust is c/o Alabama Power Company, 600 North 18th Street, Birmingham,
Alabama 35291. 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. 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 in
the Underwriting Agreement Preferred Securities Certificates, registered in the
name of the nominee of the initial Clearing Agency, in an aggregate amount of
1,000 Preferred Securities having an aggregate Liquidation Amount of
$50,000,000, against receipt of the aggregate purchase price of such Preferred
Securities of $50,000,000, 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. Contemporaneously with the execution and
delivery of this Trust Agreement, the Administrative Trustees, on behalf of the
Trust, shall execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
31 Common Securities having an aggregate Liquidation Amount of $1,550,000
against payment by the Depositor of such amount. Contemporaneously therewith,
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 $51,550,000, and, in satisfaction of the
purchase price for such Junior Subordinated Notes, the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor the sum of $51,550,000.
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, William E. Zales,
Jr. and J. Randy DeRieux 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 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. 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 paragraphs (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:
(a) As among the Trustees, the Administrative Trustees, acting singly or
jointly, 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 ss. 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 ss.
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 Trust Agreement
and the Auction Agent Agreement;
(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 Auction Agent Agreement, 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 this 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, if necessary and, as shall be
determined by the Depositor and the registration of the Preferred
Securities under the Exchange Act, 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 in
accordance with this Trust Agreement and the Auction Agent Agreement;
(xvi) to appoint a Paying Agent (subject to Section 5.09), authenticating
agent, Auction 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 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;
(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 specifically required of the Property Trustee
pursuant to the terms of this Trust Agreement 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;
(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 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;
(vi) to negotiate the terms of the Auction Agent Agreement providing for the
retention of the Auction Agent and the establishment of certain
procedures relating to Auctions; and
(vii) 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 the Administrative
Trustees determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not materially and 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 or otherwise provided in
this Trust Agreement. 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 substantially identical to that of the
Trust, (vii) prior to such merger, consolidation, amalgamation, or replacement,
the Company has received an Opinion of Counsel 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
Section 4.01 .....Distributions.
(a) The Distribution Payment Date in respect of a Short-Term Distribution Period
will be on the last day of such Short-Term Distribution Period and, in the case
of a Short-Term Distribution Period in excess of 90 days, on such additional
Distribution Payment Dates, if any, as the Administrative Trustees may specify
in connection with the establishment of such Short-Term Distribution Period.
Distributions in respect of a Distribution Period shall be payable on the
Distribution Payment Date to the holders of record as of the Record Date.
(i) If either (a) any additional Distribution Payment Date for a Short-Term
Distribution Period in excess of 90 days is not a Business Day or (b) the
day immediately succeeding any such additional Distribution Payment Date is
not a Business Day, then Distributions will be payable on the first
Business Day prior to the Distribution Payment Date that is immediately
succeeded by a Business Day, except that if the Clearing Agency changes its
current practice of paying Distributions in next-day funds to paying
Distributions in same-day funds and the Distribution Payment Date is not a
Business Day, then Distributions will be payable, without interest, on the
first Business Day following such Distribution Payment Date, in each case
with the same force and effect as if payment was made on the date such
payment was originally payable.
(ii) If either (a) the Distribution Payment Date for a Short-Term Distribution
Period which is not an additional Distribution Payment Date described in
Section 4.01(a)(i) or the final Distribution Payment Date for a Short-Term
Distribution Period in excess of 90 days is not a Business Day or (b) the
day immediately succeeding the Distribution Payment Date for such
Distribution Period is not a Business Day, then such Short-Term
Distribution Period will end on the first Business Day prior to the
Distribution Payment Date that is immediately succeeded by a Business Day,
except that if the Clearing Agency changes its current practice of paying
Distributions in next-day funds to paying Distributions in same-day funds
and the Distribution Payment Date is not a Business Day, then the
Short-Term Distribution Period will end on the first Business Day following
such Distribution Payment Date.
(b) Distribution Payment Dates in respect of a Long-Term Distribution Period
generally will be on the first day of a month selected by the Administrative
Trustees that is not more than four calendar months after the commencement of
such Long-Term Distribution Period and quarterly thereafter on the first day of
each succeeding third month and on the last day of such Long-Term Distribution
Period. Distributions in respect of a Distribution Period shall be payable on
the Distribution Payment Date to the holders of record on the Record Date. If
any such Distribution Payment Date is not a Business Day, Distributions on the
Preferred Securities will be payable, without interest, on the immediately
succeeding Business Day, with the same force and effect as if payment was made
on the date such payment was originally payable. If the final Distribution
Payment Date for a Long-Term Distribution Period would otherwise be a day that
is not a Business Day, the immediately succeeding Business Day will be the final
Distribution Payment Date for such Long-Term Distribution Period, with the same
force and effect as if payment was made on the date such payment was originally
payable, with no interest accruing for the intervening period.
(c) The amount of Distributions per Preferred Security payable in respect of a
Short-Term Distribution Period (or a portion thereof) will be computed by
multiplying the per annum Distribution Rate in effect for such Short-Term
Distribution Period by a fraction, the numerator of which will be the actual
number of days in such Short-Term Distribution Period (or portion thereof)
(determined by including the first day thereof and excluding the last thereof)
and the denominator of which will be 360, and multiplying the rate so obtained
by $50,000. The amount of Distributions per Preferred Security payable in
respect of a Long-Term Distribution Period will be computed on the basis of a
360-day year consisting of twelve 30-day months and, in the case of a Long-Term
Distribution Period beginning or ending on a date other than the first day of a
month, portions of any 30-day month based upon the actual number of days
elapsed.
(d) The Company has the right under the Subordinated Indenture to defer payments
of interest on the Junior Subordinated Notes by extending the interest payment
period from time to time on the Junior Subordinated Notes (an "Extension
Period") which, if exercised, would defer Distributions on the Preferred
Securities during any Extension Period. During an Extension Period, (i)
Distributions will continue to accrue on the Preferred Securities, (ii) Auctions
will be discontinued, (iii) regardless of any notice by the Administrative
Trustees to the contrary, each subsequent Distribution Period during such
Extension Period will be a 28-day Short-Term Distribution Period and (iv) the
Distribution Rate for each such Distribution Period will be the Maximum
Applicable Rate (which will be reset at the end of each 28-day Short-Term
Distribution Period during the Extension Period). The foregoing will continue
until the Extension Period terminates and the Company provides notice to the
Auction Agent that Auctions shall commence for the succeeding Distribution
Period in accordance with the Auction Procedures. The payment of such
Distributions, together with any interest thereon, will be distributed to the
Holders of the Trust Securities as received at the end of any Extension Period.
(e) Distributions on the Trust Securities shall be made and shall be deemed
payable on each Distribution Payment Date only to the extent that the Trust has
legally and immediately available funds in the Payment Account for the payment
of such Distributions.
(f) 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 Record Date.
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 .....Distribution Rate.
(a) The Distribution Rate on the Preferred Securities for each Distribution
Period following the initial Distribution Period will be the Applicable Rate,
the Maximum Applicable Rate, the Non-Auction Rate or the Default Rate. Except in
the event of (i) the failure to hold an Auction for any reason (other than
because an Event of Default exists) on the Auction Date scheduled to occur at
the end of the preceding Distribution Period or (ii) the occurrence of an Event
of Default, the Distribution Rate for each subsequent Distribution Period will
be the Applicable Rate.
(b) The Non-Auction Rate will apply automatically to any Distribution Period if
there is a failure to hold an Auction for any reason on the Auction Date
scheduled to occur at the end of the preceding Distribution Period, except for
circumstances in which the Distribution Rate is the Default Rate or during an
Extension Period.
(c) If an Event of Default has occurred and is continuing, (i) Auctions will be
discontinued, (ii) regardless of any notice by the Administrative Trustees on
behalf of the Trust to the contrary, each subsequent Distribution Period
commencing after such Event of Default but before Auctions are resumed will be a
28-day Short-Term Distribution Period, and (iii) the Distribution Rate for each
such 28-day Short-Term Distribution Period will be equal to the Default Rate.
The foregoing will continue until the earlier of (i) the occurrence of a
Distribution Payment Date at least one Business Day prior to which the Event of
Default has been cured or waived in accordance with Section 6.01(d) in which
case Auctions will resume as described herein for the Distribution Period
commencing with such Distribution Payment Date or (ii) the Preferred Securities
are redeemed.
(d) In the event that the Company elects an Extension Period under the terms of
the Subordinated Indenture and the provisions of Section 4.01(d) become
applicable, the Distribution Rate will be equal to the Maximum Applicable Rate
(which will be reset at the end of each 28-day Short-Term Distribution Period
during such Extension Period).
Section 4.03 .....Distribution Periods.
(a) Except as otherwise provided herein, upon not less than five Business Days,
nor more than 20 days, written notice to the Auction Agent and the Clearing
Agency prior to (i) the last day of any Distribution Period or (ii) the last day
of the final Distribution Period of any Extension Period or the last day of the
final Distribution Period for which the Default Rate will be in effect, the
Administrative Trustees, acting in their sole discretion, will select a
Long-Term Distribution Period or a Short-Term Distribution Period as the next
Distribution Period; provided that, if the Distribution Period existing prior to
such Extension Period or prior to the first Distribution Period during which the
Default Rate was applicable was a Final Distribution Period or a Long-Term
Distribution Period that would still be in effect but for such Extension Period
or Event of Default, the next Distribution Period shall be the remaining term of
such Final Distribution Period or Long-Term Distribution Period. The
Administrative Trustees will not be obligated to provide notice of the selection
of a subsequent Distribution Period, and failure to send notice by the fifth
Business Day prior to the end of the then current Distribution Period will be
deemed a selection of a 28-day Short-Term Distribution Period as the next
Distribution Period. The initial Distribution Period shall be a Short-Term
Distribution Period, the last day of which shall be March 25, 1999.
(b) The Administrative Trustees on behalf of the Trust may select a Long-Term
Distribution Period which extends to the maturity of the Junior Subordinated
Notes and eliminates the need for future Auctions (the "Final Distribution
Period"). If the Final Distribution Period is selected and Sufficient Clearing
Bids are received at the Auction immediately prior to the commencement of such
Distribution Period: (i) such Auction will be the final Auction; (ii) the
services of the Auction Agent and of the Broker-Dealers will end and (iii) there
will be no adjustment to the Distribution Rate following the commencement of
such Final Distribution Period, except upon an Event of Default or during an
Extension Period.
(c) Notwithstanding Sections 4.03(a) and 4.03(b) hereof, (i) if the Trust had
duly given notice of a Long-Term Distribution Period, the Trust may, (a) upon
written notice provided by the Administrative Trustees to the Auction Agent and
the Clearing Agency not later than 10:00 a.m., New York City time, on the
Auction Date scheduled to occur at the end of the then-current Distribution
Period, elect to change such subsequent Long-Term Distribution Period (which may
be a Final Distribution Period) to a Short-Term Distribution Period or (b) upon
written notice provided by the Administrative Trustees to the Auction Agent and
the Clearing Agency not less than one Business Day prior to the Auction Date
scheduled to occur at the end of the then-current Distribution Period, elect to
change the length of such Long-Term Distribution Period; or (ii) if the
Administrative Trustees have selected a Short-Term Distribution Period
(including a deemed selection pursuant to Section 4.03(a)), the Administrative
Trustees may (a) upon written notice provided by the Administrative Trustees to
the Auction Agent and the Clearing Agency not less than one Business Day prior
to the Auction Date scheduled to occur at the end of the then-current
Distribution Period elect to change such subsequent Short-Term Distribution
Period to a Long-Term Distribution Period (which may be a Final Distribution
Period), or (b) upon written notice provided by the Administrative Trustees to
the Auction Agent and the Clearing Agency not later than 10:00 a.m., New York
City time, on the Auction Date scheduled to occur at the end of the then-current
Distribution Period, elect to change the length of such Short-Term Distribution
Period. Any notice regarding the next Distribution Period will specify: (i)
whether the next succeeding Distribution Period will be a Short-Term
Distribution Period or a Long-Term Dividend Period and the length thereof; (ii)
in the case of a Long-Term Distribution Period, the initial Distribution Payment
Date; and (iii) in the case of a Short-Term Distribution Period of more than 90
days, the additional Distribution Payment Dates, if any, selected by the
Administrative Trustees.
(d) Notwithstanding Sections 4.03(a), 4.03(b) and 4.03(c):
(i) the Administrative Trustees may select a Long-Term Distribution Period
only if on the date of notice of that selection Distribution payments
on the Preferred Securities are current; and
(ii) a 28-day Short-Term Distribution Period will automatically follow the
expiration of the preceding Distribution Period if:
(a) the Administrative Trustees do not select a Long-Term Distribution Period
or a Short-Term Distribution Period; or
(b) Sufficient Clearing Bids are not made for any reason (other than because
all of the Preferred Securities are the subject of Submitted Hold Orders)
in the Auction occurring at the end of such preceding Distribution Period;
or
(c) an Auction is not held, for any reason, on the Auction Date scheduled to
occur at the end of such preceding Distribution Period.
Section 4.04 .....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 Securities Registrar and to the Auction Agent
in accordance with the Auction Agent Agreement. All notices of redemption 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 Distributions
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 p.m. New York time, on the Redemption Date,
subject to Section 4.04(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 4.04(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
Securities Register for the Trust Securities on the relevant Record Dates for
the related Distribution Payment 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 Redemption Price 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. In the event that the Redemption Date is
not a Distribution Payment Date, the record date shall be 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 $50,000. 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 $50,000 or integral multiple thereof) of the Liquidation Amount of
Preferred Securities of a denomination larger than $50,000; provided, however,
that before 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
Securities 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 4.04 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.
(h) The Preferred Securities for which a notice of redemption has been given by
the Administrative Trustees will not be eligible to participate in any Auction
for a Distribution Period commencing on or after the date specified for
redemption, and such Preferred Securities will not be included for purposes of
such Auction, whether or not such redemption actually occurs.
Section 4.05 .....Subordination of Common Securities and Distributions.
(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 Payment 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 this 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 this Trust Agreement with
respect to the Preferred Securities have been so 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.
(c) Distributions on the Common Securities shall be payable at the same
Distribution Rates, on the same Distribution Payment Dates and for the same
Distribution Periods and to holders as of the same Record Date as for the
Preferred Securities.
Section 4.06 .....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 Payment 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 4.07 .....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. The Administrative
Trustee(s) shall provide or cause to be provided on a timely basis to each
Holder any Internal Revenue Service form required to be so provided in respect
of the Trust Securities.
Article V ...
Trust Securities Certificates
Section 5.01 .....Initial Ownership. Upon the creation 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
$50,000 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 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 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 canceled and subsequently disposed of by the
Securities 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 or the Administrative Trustees 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 Distributions (subject
to Section 4.01(d)) 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 The Chase Manhattan Bank, 450
West 33rd Street, New York, New York 10001, 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 and other payments provided hereby to Securityholders from the
Payment Account and shall report the amounts of such Distributions and payments
to the Property Trustee and the Administrative Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Payment Account for the
purpose of making the Distributions and payments provided hereby. 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. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees and the
Depositor. In the event that a Paying Agent shall resign or be removed, 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 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; and
(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.
(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 or other similar rights
and when issued and delivered to Securityholders against payment of the purchase
price therefor, except as otherwise provided in the Expense Agreement and
Section 10.01 hereof, 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 11.03 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 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 this Trust Agreement provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely affect
the powers, preferences or special rights of the Preferred Securities, whether
by way of amendment to this 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.
(d) An Event of Default will be deemed to be cured or waived if, at any time,
(i) after an Event of Default exists and payment of interest and principal on
the Junior Subordinated Notes has been accelerated under the terms of the
Subordinated Note Indenture or (ii) prior to a judgment or decree for the
payment of the money due on the Preferred Securities has been obtained, the
following events occur: (A) the holders of at least 66 2/3% in liquidation
amount of the outstanding Preferred Securities give written notice to the
Property Trustee, the Administrative Trustees and the Company to rescind and
annul such declaration of acceleration of the Junior Subordinated Notes and its
consequences, (B) the Trust pays and deposits with the Clearing Agency a sum
sufficient to pay all Distributions (including any accrued interest) and the
liquidation amount due on the Preferred Securities otherwise than caused by the
acceleration of the Junior Subordinated Notes and (C) all other Events of
Default are no longer continuing or have been waived.
(e) Subject to this Section, Section 11.03(c) and Section 8.19 of this Trust
Agreement, the Holders of at least 66% in Liquidation Amount of the Outstanding
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default hereunder and its consequences, except a
default in the payment of any Distribution or redemption payment or in respect
of a covenant or provision hereof which under Section 11.03(c) cannot be
modified or amended without the consent of the Holder of each Preferred
Security.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Trust Agreement; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Any waiver by the Holders of the Preferred Securities of an
Event of Default with respect to Preferred Securities shall also be deemed to
constitute a waiver by the Holders of Common Securities for all purposes of the
Trust Agreement without any further act, vote or consent of the Holders of
Common Securities.
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 11.08 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. 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 in their
discretion, call a meeting of Preferred Securityholders to vote on any matters
as to 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 $50,000 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. No
proxy shall be valid more than three years after its date of execution.
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).
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 acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or 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 deem 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 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 Trustees. 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;
(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, the 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 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:
(a) the Property Trustee may rely and shall be protected in acting or refraining
from acting in good faith upon any resolution, Opinion of Counsel, certificate,
written representation of a Holder or transferee, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action, or (ii) in
construing any of the provisions in this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein, or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
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 action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) 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;
(d) 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;
(e) 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;
and
(f) the Property Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its agents or
attorneys; provided that the Property Trustee shall be responsible for its own
negligence or 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:
(a) 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);
(b) 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 willful misconduct, negligence or bad faith; and
(c) to indemnify the Trustees for, and to hold the Trustees harmless against,
any and all loss, damage, claims, liability or expense incurred without willful
misconduct, 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 in connection with the exercise or performance of any of their powers
or duties hereunder.
The provisions of this Section 8.06 shall survive the
termination of this Trust 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 Trust Agreement. To the extent permitted by the
Trust Indenture Act, the Property Trustee shall not be deemed to have a
conflicting interest by virtue of being trustee under (i) the Guarantee, (ii)
the amended and restated trust agreement dated as of January 1, 1996, among the
Company, as Depositor, Chase Manhattan Bank Delaware (formerly known as Chemical
Bank Delaware), as Delaware Trustee, the Administrative Trustees named therein
and The Chase Manhattan Bank (formerly known as Chemical Bank), as Property
Trustee, relating to Alabama Power Capital Trust I, (iii) the amended and
restated trust agreement dated as of January 1, 1997, among the Company, as
Depositor, Chase Manhattan Bank Delaware (formerly known as Chemical Bank
Delaware), as Delaware Trustee, the Administrative Trustees named therein and
The Chase Manhattan Bank (formerly known as Chemical Bank), as Property Trustee,
relating to Alabama Power Capital Trust II, (iv) the guarantee agreement dated
as of January 1, 1996, between the Company, as Guarantor, and The Chase
Manhattan Bank (formerly known as Chemical Bank), as trustee, relating to
Alabama Power Capital Trust I, and (v) the guarantee agreement dated as of
January 1, 1997, between the Company, as Guarantor, and The Chase Manhattan Bank
(formerly known as Chemical Bank), as trustee, relating to Alabama Power Capital
Trust II.
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 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 Indenture Event of Default 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 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 Indenture Event of Default has occurred and
is continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee without
the concurrence of the Depositor. Upon the written request of the Property
Trustee, the Depositor shall join with the Property Trustee in the
execution, delivery, and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so 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 Indenture 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 Indenture 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).
If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Trustee at a time when no Indenture 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 Indenture 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 if
it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware Trustee
who is a natural person dies or becomes 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 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 Person 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 Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder; provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
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 checks or other orders drawn upon banks or bankers
and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill 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, bill 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, 1999, 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 Trust 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 of
the Trust Indenture Act (if any) and, within 120 days after the end of each
fiscal year of the Depositor, 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 the
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 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 the 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 Trust
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 65 consecutive 28-day Short Term 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 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 this 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 fullest 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, 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. Notwithstanding the foregoing, a Holder of
Preferred Securities may institute a legal proceeding directly against the
Company, without first instituting a legal proceeding against or requesting or
directing that action be taken by the Property Trustee or any other Person, for
enforcement of payment to such Holder of principal of or interest on the Junior
Subordinated Notes having a principal amount equal to the aggregate stated
liquidation amount of the Preferred Securities of such Holder on or after the
due dates therefor specified or provided for in the Junior Subordinated Notes.
The Company shall be subrogated to all rights of the Holders of Preferred
Securities in respect of any amounts paid to such Holders by the Company
pursuant to this Section.
Section 8.20 .....Delaware Trustee.
(a) Notwithstanding any other provision of this Trust Agreement, 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 Administrative
Trustees or the Property Trustee described in this Trust Agreement. The Delaware
Trustee shall be a trustee for the sole and limited purpose of fulfilling the
requirements of ss.3807 of the Delaware Business Trust Act.
(b) It is expressly understood and agreed by the parties hereto that in
fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust
(i) any agreements or instruments executed and delivered by Chase Manhattan Bank
Delaware are executed and delivered not in its individual capacity but solely as
Delaware Trustee under this Trust Agreement in the exercise of the powers and
authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as representations, warranties, covenants, undertakings and
agreements by Chase Manhattan Bank Delaware in its individual capacity but is
made and intended for the purpose of binding only the Trust, and (iii) under no
circumstances shall Chase Manhattan Bank Delaware in its individual capacity be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Trust Agreement,
except if such breach or failure is due to any gross negligence or willful
misconduct of the Delaware Trustee.
Article IX ..
Termination and Liquidation
Section 9.01 Termination Upon Expiration Date. The Trust shall
automatically terminate on December 31, 2029 (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 in respect of the Depositor,
dissolution or liquidation of the Depositor, or the dissolution of the
Trust pursuant to judicial decree;
(ii) the delivery of written direction to the Property Trustee by the
Depositor at any time (which direction is optional and wholly within
the discretion of the Depositor) to terminate the Trust and distribute
the Junior Subordinated Notes to Securityholders as provided in Section
9.04; 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 pursuant to Section 9.04, or
upon the redemption of all of the Trust Securities pursuant to Section 4.04, 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 Trust shall be liquidated and the Property Trustee shall distribute
the Junior Subordinated Notes to the Securityholders as provided in this Section
9.04.
(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 liabilities to 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
Securities 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
(iii) provide such information with respect to the mechanics by which Holders
may exchange Trust Securities Certificates for Junior Subordinated
Notes as the Administrative Trustees or the Property Trustee shall deem
appropriate.
(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 effect 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 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 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 Indenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
Article X ...
The Auction
Section 10.01 ....Applicable Rate. The Applicable Rate will ordinarily be the
rate per annum that the Auction Agent advises results from the implementation of
the Auction Procedures. Pursuant to the Auction Procedures, Persons determine to
hold or offer to purchase or sell the Preferred Securities based on the
distribution rates bid by them. The Auction Procedures will be implemented on
each Auction Date. The Company and any affiliate of the Company may submit an
Order in any Auction, subject to compliance with all applicable securities and
other laws.
Section 10.02 ....Auction Agent.
(a) Prior to the issuance of the Preferred Securities, the Company and the Trust
will enter into the Auction Agent Agreement with the Auction Agent, providing,
among other things, that the Auction Agent will follow the Auction Procedures
for the purposes of determining the Applicable Rate. The Company will pay the
Auction Agent compensation for its services under the Auction Agent Agreement.
(b) The Auction Agent will act solely as agent for the Trust in connection with
each Auction and will not be a fiduciary for Holders. In the absence of bad
faith or negligence on its part, the Auction Agent will not be liable for any
action taken, suffered or omitted or for any error of judgment made by it in the
performance of its duties under the Auction Agent Agreement and will not be
liable for any error of judgment made in good faith unless the Auction Agent has
been negligent in ascertaining the pertinent facts. The Company and the Trust
will indemnify the Auction Agent for, and hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part
arising out of or in connection with its acceptance or administration of its
agency duties or functions under the Auction Agent Agreement.
The Auction Agent may terminate the Auction Agent Agreement
upon notice to the Administrative Trustees on behalf of the Trust, with such
termination being effective on the earlier of (i) the first Business Day after
the second Distribution Payment Date occurring after the delivery of such notice
or 90 days after the delivery of such notice or (ii) the date on which a
successor Auction Agent is appointed by the Administrative Trustees pursuant to
an agreement containing substantially the same terms and conditions as the
Auction Agent Agreement. The Administrative Trustees may also terminate the
Auction Agent Agreement upon 30 days written notice to the Auction Agent but
only if, prior to such termination, the Company and the Trust have entered into
an agreement with a successor Auction Agent containing substantially the same
terms and conditions as the Auction Agent Agreement The Company and the Trust
will use their best efforts to maintain an Auction Agent with respect to the
Preferred Securities pursuant to an agreement containing terms and conditions
substantially similar to the terms and conditions of the Auction Agent
Agreement.
Section 10.03 ....Broker-Dealers. The Auction Procedures require the
participation of one or more broker-dealers. The Auction Agent will initially
enter into a non-exclusive agreement with each of Goldman, Sachs & Co. ("Goldman
Sachs")and Lehman Brothers Inc. ("Lehman Brothers") and, under certain
circumstances, may enter into similar agreements with one or more other
broker-dealers ( the "Broker-Dealers") that provide for the participation by
broker-dealers in Auctions as broker-dealers (collectively, the "Broker-Dealer
Agreements"). Subject to certain exceptions, Goldman Sachs and Lehman Brothers
will initially be the Broker-Dealers. After each Auction, the Company will pay a
service charge to each Broker-Dealer. Existing Holders and Potential Holders
must submit Orders for the Preferred Securities through any Broker-Dealer in
order to participate in an Auction. Each Broker-Dealer may submit Orders and
purchase the Preferred Securities for its own account, either in an Auction or
otherwise and, in such capacity, each Broker-Dealer shall be considered an
Existing Holder or a Potential Holder, as the case may be.
Section 10.04 ....Purchaser's Letter.
(a) As a condition to purchasing the Preferred Securities or participating in an
Auction or otherwise acquiring the Preferred Securities, each prospective
purchaser of the Preferred Securities may be required to sign and deliver to any
Broker-Dealer a purchaser's letter (each, a "Purchaser's Letter"). Each
Broker-Dealer will be required to inform the Auction Agent whether the
Broker-Dealer required the holder or prospective purchaser to execute a
Purchaser's Letter. Each holder or prospective purchaser of the Preferred
Securities may be required to deliver an updated Purchaser's Letter no less
frequently than annually.
(b) In the Purchaser's Letter, the prospective purchaser will agree, among
other things:
(i) to offer, sell, transfer or otherwise dispose of the Preferred
Securities only pursuant to a Bid or a Sell Order in an Auction, or to
or through any Broker-Dealer or to the Company; provided that, in the
case of all transfers other than those pursuant to an Auction, the
selling Existing Holder or its Broker-Dealer advises the Auction Agent
of such transfer and such transfer is made in compliance with the
applicable Purchaser's Letter;
(ii) that any Bid or Sell Order placed by such purchaser will constitute an
irrevocable offer to purchase or sell the Preferred Securities subject
to such Bid or Sell Order, or such lesser number of Preferred
Securities as such purchaser will be required to purchase or sell,
respectively, as a result of such Auction, at a price of $50,000 per
Preferred Security, and that a failure by such purchaser or any
Broker-Dealer to place a Bid or Sell Order with respect to any
Preferred Securities owned by that purchaser will be deemed to
constitute a Hold Order with respect to those Preferred Securities; and
(iii)that it understands and agrees that: (a) so long as there is a Clearing
Agency for the Preferred Securities, the ownership of the Preferred
Securities as to which that purchaser is the Existing Holder will be
maintained in book-entry form by such Clearing Agency, in the account of
that purchaser's Clearing Agency (Participant), which in turn will maintain
records of that purchaser's ownership; (b) such Agent Member is authorized
to disclose to the Auction Agent such information with respect to such
purchaser's beneficial ownership as the Auction Agent may request; and (c)
so long as there is a Clearing Agency for the Preferred Securities or
unless otherwise required by law, such purchaser will not be entitled to
receive certificates evidencing the Preferred Securities.
Execution of a Purchaser's Letter, if required, is not a
commitment to purchase the Preferred Securities but may be a condition precedent
to purchasing the Preferred Securities in an Auction or otherwise.
(c) Any transfer of the Preferred Securities contrary to the terms of a
Purchaser's Letter may, among other things, affect the right of the Person
acquiring such Preferred Securities to participate in future Auctions.
(d) The Auction Agent may rely upon, as evidence of the identities of the
Existing Holders, a list of the initial owners of the Preferred Securities
provided by the Administrative Trustees or any Broker-Dealer and the results of
Auctions and notices from selling Existing Holders (or any Broker-Dealer and
Clearing Agency Participants) with respect to transfers of the Preferred
Securities. The Auction Agent will be required to register a transfer of
beneficial ownership of the Preferred Securities from an Existing Holder to
another person only if such transfer is made to a person that has delivered or
caused to be delivered a signed Purchaser's Letter, if required, to any
Broker-Dealer and if (i) such transfer is pursuant to an Auction or (ii) the
Auction Agent has been notified of such transfer in writing by the selling
Existing Holder or its Broker-Dealer, and, in either case, that such transfer is
being made in compliance with the terms of the selling Existing Holder's
Purchaser's Letter, if any. The Auction Agent is not required to accept any
notice of transfer prior to an Auction unless it is received by the Auction
Agent by 3:00 p.m., New York City time, on the Business Day immediately
preceding the related Auction Date. If there has been a failure by the seller of
the Preferred Securities to deliver such Preferred Securities to a purchaser as
a result of an Auction, or if a purchaser of the Preferred Securities has failed
to make payment to the seller of such Preferred Securities, a Broker-Dealer must
send written notice of such failure to the Auction Agent.
Section 10.05 ....Auction Date. Except as otherwise provided herein, an Auction
will be held at the end of each Distribution Period to determine the Applicable
Rate for the subsequent Distribution Period. Each such Auction will be held, in
the case of an Auction held at the end of a Short-Term Distribution Period, on
the Business Day immediately preceding the last day of such Short-Term
Distribution Period, and in the case of an Auction held at the end of a
Long-Term Distribution Period, on the third Business Day preceding the last day
of such Long-Term Distribution Period.
Section 10.06 ....Orders.
(a) The Auction Agent is entitled to rely upon the terms of any Order submitted
to it by a Broker-Dealer. The Auction Agent will, if necessary, round any rate
specified in any Order (expressed as a percentage) that contains more than three
figures to the right of the decimal point up to the next highest one-thousandth
of one percent (.001%).
(b) Prior to 12:30 p.m., New York City time, on each Auction Date or such other
time on the Auction Date specified by the Auction Agent (the "Submission
Deadline"), each Broker-Dealer participating in the Auction will submit to the
Auction Agent in writing all Orders obtained by it for such Auction to be
conducted on such Auction Date. The Broker-Dealers must submit separate Orders
for each customer and may not net or aggregate the Orders of different
customers. The Company intends that any Orders submitted by the Company or any
of its affiliates would be submitted as close as practicable to the applicable
Submission Deadline.
Section 10.07 ....Existing Holders.
(a) Prior to the Submission Deadline for each Auction, each Broker-Dealer will
contact Existing Holders of the Preferred Securities, by telephone or otherwise,
to notify such Existing Holders as to: (i) whether the next Distribution Period
is a Short-Term Distribution Period or a Long-Term Distribution Period and the
length thereof; (ii) additional Distribution Payment Dates, if any, with respect
to a Short-Term Distribution Period of more than 90 days; (iii) the initial
Distribution Payment Date, with respect to a Long-Term Distribution Period; and
(iv) the Maximum Applicable Rate then in effect; and to determine whether such
Existing Holders desire to place Orders. Each Existing Holder, with respect to
the Preferred Securities that it then holds, may submit to a Broker-Dealer by
telephone or otherwise a:
(i) "Hold Order"--indicating the number of Preferred Securities that such
Existing Holder desires to continue to hold without regard to the
Applicable Rate for the next Distribution Period;
(ii) "Bid"--indicating the number of Preferred Securities that such Existing
Holder desires to continue to hold; provided that the Applicable Rate
for the next Distribution Period is not less than the rate per annum
specified in such Bid; or
(iii) "Sell Order"--indicating the number of Preferred Securities that such
Existing Holder desires to sell without regard to the Applicable Rate
for the next Distribution Period.
(b) A Sell Order submitted by an Existing Holder will constitute an irrevocable
offer to sell the Preferred Securities subject to that Order, and a Bid
submitted by an Existing Holder will constitute an irrevocable offer to sell the
Preferred Securities subject to that Bid if the rate specified in such Bid is
higher than the Applicable Rate determined in the Auction. Any Bid submitted by
an Existing Holder specifying a rate higher than the Maximum Applicable Rate
will be deemed to be a Sell Order.
(c) If, for any Auction, Orders covering all of the outstanding Preferred
Securities held by an Existing Holder are not submitted to the Auction Agent
(through a Broker-Dealer) prior to the Submission Deadline, whether because any
Broker-Dealer failed to contact such Existing Holder, such Existing Holder
failed to place a Bid or Sell Order or such Broker-Dealer failed to submit the
Existing Holder's Orders or for any other reason, the Auction Agent will deem a
Hold Order to have been submitted by such Existing Holder covering the number of
Preferred Securities held by such Existing Holder and not subject to any Order
submitted to the Auction Agent.
(d) An Existing Holder may submit different types of Orders in an Auction with
respect to Preferred Securities then held by that Existing Holder. In any
Auction, if one or more Orders covering in the aggregate more than the number of
Preferred Securities held by an Existing Holder are submitted to the Auction
Agent (through a Broker-Dealer), those Orders will be considered valid as
follows and in the following order of priority:
(i) any Hold Order submitted on behalf of such Existing Holder will be
considered valid up to and including the Preferred Securities held by
such Existing Holder, except that if more than one Hold Order is
submitted on behalf of such Existing Holder and the number of Preferred
Securities subject to such Hold Orders exceeds the number of Preferred
Securities held by such Existing Holder, the number of Preferred
Securities subject to each such Hold Order will be reduced pro rata so
that such Hold Orders will cover exactly the number of Preferred
Securities held by such Existing Holder.
(ii) (a) any Bid submitted on behalf of such Existing Holder will be considered
valid up to and including the excess of the number of Preferred Securities
held by such Existing Holder over the number of Preferred Securities
subject to any Hold Orders referred to in clause (i) above; (b) subject to
subclause (a), if more than one Bid with the same rate is submitted on
behalf of such Existing Holder and the number of Preferred Securities
subject to such Bids is greater than such excess, the number of Preferred
Securities subject to each such Bid will be reduced pro rata so that such
Bids will cover exactly the number of Preferred Securities equal to such
excess; (c) subject to subclause (a), if more than one Bid with different
rates is submitted on behalf of such Existing Holder, such Bids will be
considered valid in the ascending order of their respective rates up to and
including the amount of such excess; and (d) in any such event, the number,
if any, of Preferred Securities subject to Bids not valid under subclause
(a), (b) or (c) of this clause (ii) (i.e., Bids in excess of the Preferred
Securities held by the Existing Holder) will be treated as the subject of a
Bid by such Existing Holder as a Potential Holder of such Preferred
Securities; and
(iii) any Sell Order submitted on behalf of such Existing Holder will be
considered valid up to and including the excess of the number of
Preferred Securities held by such Existing Holder over the number of
Preferred Securities subject to valid Hold Orders by such Existing
Holder referred to in clause (i) and valid Bids by such Existing Holder
referred to in clause (ii), except that if more than one Sell Order is
submitted on behalf of such Existing Holder and the Preferred
Securities subject to such Sell Orders is greater than such excess, the
Preferred Securities subject to such Sell Orders will be reduced pro
rata so that such Sell Orders will cover exactly the number of
Preferred Securities equal to such excess.
Section 10.08 ....Potential Holders.
(a) Prior to the Submission Deadline for each Auction, each Broker-Dealer will
contact Potential Holders of the Preferred Securities by telephone or otherwise
to notify such Potential Holders as to: (i) whether the next Distribution Period
is a Short-Term Distribution Period or a Long-Term Distribution Period and the
length thereof; (ii) additional Distribution Payment Dates, if any, with respect
to a Short-Term Distribution Period of more than 90 days; (iii) the initial
Distribution Payment Date with respect to a Long-Term Distribution Period; and
(iv) the Maximum Applicable Rate then in effect; and to determine whether such
Potential Holders desire to submit Bids.
(b) A Bid submitted by a Potential Holder will constitute an irrevocable offer
to purchase the Preferred Securities subject to such Bid if the rate specified
in the Bid is less than or equal to the Applicable Rate determined in the
related Auction. An Existing Holder who submits a Bid in excess of the number of
Preferred Securities then held by such Existing Holder will be treated as a
Potential Holder to the extent of such excess. Any Bid submitted by a Potential
Holder specifying a rate higher than the Maximum Applicable Rate will be
rejected.
(c) If more than one Bid is submitted on behalf of any Potential Holder, each
Bid submitted will be deemed a separate Bid with the rate and number of
Preferred Securities specified therein.
Section 10.09 ....Extension Period.
(a) Upon not less than five Business Days, nor more than 20 days written notice
to the Auction Agent and the Clearing Agency prior to the last day of the final
Distribution Period of any Extension Period, the Administrative Trustees will
select a Long-Term Distribution Period or a Short-Term Distribution Period as
the next Distribution Period; provided that if the Distribution Period existing
prior to such Extension Period was a Final Distribution Period or a Long-Term
Distribution Period that would still be in effect but for such Extension Period,
the next Distribution Period shall be the remaining term of such Final
Distribution Period or Long-Term Distribution Period.
(b) Prior to the end of the final Distribution Period of any Extension Period,
an Auction will be held to determine the Applicable Rate for the subsequent
Distribution Period. Each such Auction will be held (i) in the case of a
Short-Term Distribution Period, on the Business Day immediately preceding the
last day of the final Distribution Period of such Extension Period and (ii) in
the case of a Long-Term Distribution Period, on the third Business Day preceding
the last day of the final Distribution Period of such Extension Period.
Section 10.10 ....Determination of Distribution Rate in an Auction.
(a) No earlier than the Submission Deadline on each Auction Date, the Auction
Agent will assemble all Orders submitted or deemed submitted to it by any
Broker-Dealer (each Hold Order, Bid or Sell Order as submitted or deemed
submitted by any Broker-Dealer being referred to herein as a "Submitted Hold
Order," a "Submitted Bid" or a "Submitted Sell Order," as the case may be, or as
a "Submitted Order") and will determine the excess, if any, of the total number
of Preferred Securities over the Preferred Securities subject to Submitted Hold
Orders (such excess called the "Available Preferred Securities"). If all of the
Preferred Securities are subject to Submitted Hold Orders, there will be no
Available Preferred Securities and the Applicable Rate for the next Distribution
Period will be the Minimum Applicable Rate on such Auction Date determined by
the Auction Agent in consultation with the Administrative Trustees.
(b) If there are Available Preferred Securities with respect to any Auction, the
Auction Agent will determine whether Sufficient Clearing Bids have been made in
such Auction. "Sufficient Clearing Bids" will have been made if the number of
Preferred Securities that are the subject of Submitted Bids by Potential Holders
(including Existing Holders who have submitted Bids to purchase additional
Preferred Securities and are thus Potential Holders with respect to such
Preferred Securities), specifying rates not higher than the Maximum Applicable
Rate determined by the Auction Agent in consultation with the Administrative
Trustees, equals or exceeds the number of Preferred Securities that are the
subject of Submitted Sell Orders (including the number of Preferred Securities
subject to Submitted Bids by Existing Holders specifying rates higher than the
Maximum Applicable Rate).
(c) If Sufficient Clearing Bids have been made with respect to any Auction, the
Auction Agent will determine the lowest rate specified in the Submitted Bids of
Existing Holders and Potential Holders (the "Winning Bid Rate") that would
result in Existing Holders continuing to hold (pursuant to Submitted Bids) and
Potential Holders (including Existing Holders who have placed Bids to purchase
additional Preferred Securities) purchasing, at such rate, an aggregate number
of Preferred Securities at least equal to the number of Available Preferred
Securities. If Sufficient Clearing Bids have been made, the Applicable Rate for
the next succeeding Distribution Period will be the Winning Bid Rate.
(d) If Sufficient Clearing Bids have not been made in an Auction (other than
because all of the Preferred Securities are the subject of Submitted Hold
Orders) and no Event of Default exists, the Applicable Rate for the next
succeeding Distribution Period will be equal to the Maximum Applicable Rate on
the date of such Auction, and the related Distribution Period will be a 28-day
Short-Term Distribution Period regardless of whether the Administrative Trustees
have selected a Long-Term Distribution Period or a Short-Term Distribution
Period of any other length prior to such Auction. In such event, Existing
Holders that have placed Sell Orders for Preferred Securities will not be able
to sell all, and may not be able to sell any, Preferred Securities in such
Auction.
(e) If Sufficient Clearing Bids have not been made in an Auction (other than
because all of the Preferred Securities were the subject of Submitted Hold
Orders) or if an Auction has not been held on a scheduled Auction Date (other
than because an Event of Default exists or an Extension Period has been
elected), the Maximum Applicable Rate with respect to the next succeeding
Auction will be the "Special Maximum Applicable Rate," which will be the higher
of (i) the Applicable Percentage of the Commercial Paper Rate for a 28-day
Short-Term Distribution Period and (ii) 150% of the highest of (a) the Treasury
Bill Rate, (b) the Ten-Year Constant Maturity Rate and (c) the Thirty-Year
Constant Maturity Rate with respect to such date. The Administrative Trustees
may, in their sole discretion, increase the 150% referred to in subclause (ii)
above. In the event that the Administrative Trustees determine in good faith
that for any reason:
(i) any one of the Treasury Bill Rate, the Ten-Year Constant Maturity Rate
or the Thirty-Year Constant Maturity Rate cannot be determined with
respect to any date, then the Special Maximum Applicable Rate with
respect to such date will be determined on the basis of the higher of
whichever two of such rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten-Year Constant Maturity Rate
and the Thirty-Year Constant Maturity Rate can be determined with
respect to any date, then the Special Maximum Applicable Rate with
respect to such date will be determined on the basis of whichever such
rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten-Year Constant Maturity Rate and
Thirty-Year Constant Maturity Rate can be determined with respect to
any date, then the Special Maximum Applicable Rate will be the rate
otherwise determined under the terms of the Preferred Securities.
(f) If either Moody's or S&P or both do not make ratings on the Preferred
Securities available, the Administrative Trustees will select one or two
nationally recognized statistical rating organizations (as the term is used in
the rules and regulations of the Commission under the 1934 Act), as the case may
be, to act as a substitute rating agency or substitute rating agencies, and the
Administrative Trustees will take all reasonable action to enable such rating
agency or rating agencies to make available the equivalent rating or ratings for
the Preferred Securities. The Administrative Trustees will take all reasonable
action necessary to enable Moody's and S&P to provide a rating for the Preferred
Securities. If necessary, the Special Maximum Applicable Rate shall be
determined by the Auction Agent in consultation with the Administrative
Trustees.
(g) With respect to the Preferred Securities, the Administrative Trustees may
from to time, upon delivery of written notice to the Auction Agent and the
Clearing Agency, increase the Applicable Percentages used to calculate the
Maximum Applicable Rate as follows: the 150% to up to 175%, the 200% to up to
225% and the 250% to up to 275%, with no change to the 300%. The Administrative
Trustees have no obligation to designate a higher Applicable Percentage.
Section 10.11 ....Acceptance and Rejection of Orders and Allocation of Preferred
Securities.
(a) With respect to each Auction, Submitted Bids and Submitted Sell Orders will
be accepted or rejected by the Auction Agent such that the Existing Holders and
Potential Holders of the Preferred Securities will sell, continue to hold and/or
purchase the Preferred Securities as described below and in such order of
priority. Existing Holders that placed or were deemed to have placed Hold Orders
in such Auction will continue to hold Preferred Securities subject to such Hold
Orders, subject to the rounding procedures described herein.
(b) If Sufficient Clearing Bids in any Auction have been made:
(i) each Existing Holder that placed a Submitted Bid specifying a rate
higher than the Winning Bid Rate or a Submitted Sell Order will sell
the number of Preferred Securities subject to such Submitted Bid or
Submitted Sell Order;
(ii) each Existing Holder that placed a Submitted Bid specifying a rate
lower than the Winning Bid Rate will continue to hold the number of the
Preferred Securities subject to such Submitted Bid;
(iii) each Potential Holder that placed a Submitted Bid specifying a rate
lower than the Winning Bid Rate will purchase the number of Preferred
Securities subject to such Submitted Bid;
(iv) each Existing Holder that placed a Submitted Bid specifying a rate
equal to the Winning Bid Rate will continue to hold the number of
Preferred Securities subject to such Submitted Bid, unless the number
of Preferred Securities subject to all such Submitted Bids placed by
Existing Holders is greater than the excess of the number of Preferred
Securities over the number of Preferred Securities accounted for in
clauses (ii) and (iii) above, in which event each Existing Holder with
such a Submitted Bid will sell a number of Preferred Securities
determined on a pro rata basis based on the number of Preferred
Securities subject to all such Submitted Bids by such Existing Holders;
and
(v) each Potential Holder that placed a Submitted Bid specifying a rate
equal to the Winning Bid Rate will purchase any Preferred Securities
not accounted for in clause (ii), (iii) or (iv) above on a pro rata
basis based on the number of outstanding Preferred Securities subject
to all such Submitted Bids by such Potential Holders.
(c) If Sufficient Clearing Bids have not been made in any Auction (other than
because all of the Preferred Securities are the subject of Submitted Hold
Orders):
(i) each Existing Holder that placed a Submitted Bid specifying a rate
equal to or lower than the Maximum Applicable Rate will continue to
hold the number of outstanding Preferred Securities subject to such
Submitted Bid;
(ii) each Potential Holder that placed a Submitted Bid specifying a rate
equal to or lower than the Maximum Applicable Rate will purchase the
number of Preferred Securities subject to such Submitted Bid; and
(iii) each Existing Holder that placed a Submitted Sell Order (including a
Submitted Bid specifying a rate in excess of the Maximum Applicable
Rate) will sell a number of Preferred Securities, determined on a pro
rata basis, such that the aggregate number of Preferred Securities sold
by all such Existing Holders is equal to the number of Preferred
Securities to be purchased pursuant to (ii) above.
(d) Notwithstanding Section 10.11(c), if Sufficient Clearing Bids have not been
made (other than because all of the Preferred Securities are the subject of
Submitted Hold Orders) in an Auction held for the purpose of determining the
Distribution Rate for a Long-Term Distribution Period, (i) each Existing Holder
will continue to hold its Preferred Securities after such Auction irrespective
of any Orders made by such Existing Holders or by Potential Holders, (ii) the
next-succeeding Distribution Period will be, notwithstanding any prior notice by
the Administrative Trustees, a 28-day Short-Term Distribution Period and (iii)
the Distribution Rate for such Short-Term Distribution Period will be the
Maximum Applicable Rate as of such Auction Date.
(e) If, in any Auction, as a result of the Auction Procedures described above,
any Existing Holder would be entitled or required to sell, or any Potential
Holder would be entitled or required to purchase, a fraction of a Preferred
Security on any Auction Date, the Auction Agent will, in such manner as it may
determine (in its sole discretion), round up or down the number of the Preferred
Securities being sold or purchased by any Existing Holder or Potential Holder on
such Auction Date so that the number of the Preferred Securities sold or
purchased by each Existing Holder or Potential Holder will be whole Preferred
Securities, even if such allocation results in one or more of such Potential
Holders not purchasing the Preferred Securities on such Auction Date or one or
more Existing Holders selling all the Preferred Securities previously held by
them.
Section 10.12 ....Notification of Results.
(a) On the Auction Date for each Auction the Auction Agent will advise each
Broker-Dealer with respect to any Bid or Sell Order submitted on behalf of a
Bidder whether any such Order was accepted or rejected in whole or in part and
the Distribution Rate for the next Distribution Period by telephone by
approximately 3:00 p.m., New York City time, on such Auction Date.
(b) The Broker-Dealer Agreements will provide that if any Broker-Dealer
submitted a Bid or Sell Order on behalf of a Bidder in any Auction, such
Broker-Dealer will (i) advise such Bidder as soon as practicable whether such
Bid or Sell Order was accepted or rejected, (ii) advise each such Bidder that
will hold the Preferred Securities following such Auction of the duration of and
the Distribution Rate for the next Distribution Period and (iii) advise each
such Bidder purchasing or selling shares to give instructions to such
Broker-Dealer (or its Agent Member) to pay the purchase price (in same-day
funds) against delivery of such Preferred Securities by book entry ("Delivery")
or to effect Delivery of such Preferred Securities against payment therefor, as
may be appropriate. If any Broker-Dealer submitted a Hold Order on behalf of an
Existing Holder in any Auction, such Broker-Dealer will also advise such
Existing Holder of the duration of and the Distribution Rate for the next
Distribution Period. The Auction Agent will record each transfer of the
Preferred Securities on the registry of Existing Holders to be maintained by the
Registrar and Transfer Agent.
(c) Based on the results of each Auction, the Auction Agent will determine the
aggregate number of Preferred Securities to be purchased and the aggregate
number of Preferred Securities to be sold by Potential Holders and Existing
Holders on whose behalf any Broker-Dealer placed Orders.
(d) If any Existing Holder selling Preferred Securities in any Auction fails to
instruct its Agent Member to effect Delivery of the Preferred Securities, a
Broker-Dealer may Deliver to a person who was to have purchased Preferred
Securities in such Auction a number of Preferred Securities, that is less than
the number of Preferred Securities that otherwise was to be purchased by such
person. In that event, the number of Preferred Securities to be so Delivered
will be determined by such Broker-Dealer. Neither the Company, the Trust nor the
Auction Agent will have any responsibility or liability with respect to the
failure of a Potential Holder, an Existing Holder or any Broker-Dealer or Agent
Member to effect Delivery of the Preferred Securities or to pay for the
Preferred Securities purchased or sold pursuant to an Auction or otherwise.
Article XI ..
Miscellaneous Provisions
Section 11.01 ....Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor irrevocably and unconditionally guarantees to
each Person 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 11.02 ....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 11.03 ....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 any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement; 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 11.03(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 11.03.
(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 or the Auction Agent, this Trust
Agreement may not be amended in a manner which imposes any additional obligation
on the Depositor or the Auction Agent. 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. Any Trustee may, but shall not be obligated to, enter into any
such amendment which affects such 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 11.04 ....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 11.05 ....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 INTERNAL 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 11.06 ....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 11.07 ....Headings. The Article and Section headings are for convenience
only and shall not affect the construction of this Trust
Agreement.
Section 11.08 ....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, first-class 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, 600 North 18th Street, Birmingham, Alabama 35291, Attention: Treasurer,
Facsimile No. (205) 257-2445, with a copy to Southern Company Services, Inc.,
270 Peachtree Street, NW, Suite 2000, Atlanta, Georgia 30303, Attention:
Corporate Finance Department, Facsimile No. (404) 506-0674. Such notice, demand
or other communication to or upon a Securityholder 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, The Chase Manhattan Bank, 450 West
33rd Street, New York, New York, 10001, Attention: Corporate Trustee
Administration Department; Chase Manhattan Bank Delaware, 1201 Market Street,
Wilmington, Delaware 19801, 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 III 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 11.09 ....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 11.09, 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
11.09 shall survive the termination of this Trust Agreement.
Section 11.10 ....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.
(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
undivided beneficial interests in the assets of 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 AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
SUBORDINATED INDENTURE 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.
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,
as Depositor
By:______________________________________________________
William B. Hutchins, III
Title: Executive Vice President, Chief
Financial Officer and Treasurer
THE CHASE MANHATTAN BANK,
as Property Trustee
By:______________________________________________________
R. Lorenzen
Title: Assistant Vice President
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:______________________________________________________
Name:
Title:
William E. Zales, Jr.,
as Administrative Trustee
J. Randy DeRieux,
as Administrative Trustee
EXHIBIT A
[INTENTIONALLY RESERVED]
EXHIBIT B
[INTENTIONALLY RESERVED]
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number C- Number of Common Securities
Certificate Evidencing Common Securities
of
Alabama Power Capital Trust III
Common Securities
(liquidation amount $50,000 per Common Security)
Alabama Power Capital Trust III, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that Alabama Power Company (the "Holder") is the registered owner of
_____________ (_______) common securities of the Trust representing undivided
beneficial interests in the assets of the Trust and designated the Common
Securities (liquidation amount $50,000 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 February 1, 1999, 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.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust
have executed this certificate this ____ day of ______, ____.
Alabama Power Capital Trust II
By:______________________________________________________
William E. Zales, Jr.,
as Administrative Trustee
By:______________________________________________________
J. Randy DeRieux,
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 D
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement")
is made as of February 1, 1999, between Alabama Power Company, an Alabama
corporation (the "Company"), and Alabama Power Capital Trust III, a Delaware
business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Junior Subordinated Notes from the Company
and to issue and sell Alabama Power Capital Trust III Capital Auction Preferred
Securities (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 February 1, 1999, 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 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 The Chase Manhattan
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 by 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 of, 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, 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 III
c/o The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Facsimile No.: (212) 946-8159
Attention: Corporate Trustee
Administration Department
Alabama Power Company
600 North 18th Street
Birmingham, Alabama 35291
Facsimile No.: (205) 257-2445
Attention: Treasurer
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: _____________________________________________________
William B. Hutchins, III
Executive Vice President, Chief
Financial Officer and Treasurer
ALABAMA POWER CAPITAL TRUST III
By:______________________________________________________
J. Randy DeRieux, as
Administrative Trustee
1
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 III 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
P-_ CUSIP NO. _______
Certificate Evidencing Preferred Securities
of
Alabama Power Capital Trust III
Capital Auction Preferred Securities
(Liquidation amount $50,000 per Preferred Security)
Alabama Power Capital Trust III, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that Cede & Co. (the "Holder") is the registered owner of _____ (_______)
preferred securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the Alabama Power Capital Trust III
Capital Auction Preferred Securities (liquidation amount $50,000 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, preferences
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 February 1, 1999, 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 a Guarantee
Agreement between the Company and The Chase Manhattan Bank, as guarantee
trustee, dated as of February 1, 1999, as the same may be amended from time to
time (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.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust
have executed this certificate this ____ day of _______, ____.
ALABAMA POWER CAPITAL TRUST III
By:______________________________________________________
William E. Zales, Jr.,
as Administrative Trustee
By:______________________________________________________
J. Randy DeRieux,
as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
as Administrative Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Securities 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
Securities Certificate)