CERTIFICATE OF NOTIFICATION
Filed by
ALABAMA POWER COMPANY
Pursuant to orders of the Securities and Exchange Commission dated December
15, 1994 and January 17, 1996 in the matter of File No. 70-8461.
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Alabama Power Company (the "Company") hereby certifies to said Commission,
pursuant to Rule 24, as follows with respect to the transactions described
particularly in Amendment No. 7 (Post-Effective No. 4) herein:
1. On January 24, 1996 the issuance and sale by Alabama Power Capital
Trust I ("the Trust"), a Delaware business trust, of 3,880,000 of its 7.375%
Trust Preferred Securities (Liquidation amount $25 per Preferred Security) and
all transactions relating thereto were carried out in accordance with the terms
and conditions of and for the purposes represented by the application, as
amended, and of said orders with respect thereto.
2. The issuance by the Company of $100,000,000 aggregate principal
amount of its Series A 7.375% Junior Subordinated Notes (the "Junior
Subordinated Notes") due March 31, 2026, pursuant to the First Supplemental
Indenture dated as of January 1, 1996, supplementing the Subordinated Note
Indenture dated as of January 1, 1996, between the Company and Chemical Bank, as
Trustee, was carried out in accordance with the terms and conditions of and for
the purposes represented by the application, as amended, and of said orders with
respect thereto.
3. The execution by the Company of the Guarantee Agreement, dated as of
January 1, 1996, providing for the guarantee by the Company of certain
obligations of the Trust, in respect of the Trust Preferred Securities, was
carried out in accordance with the terms and conditions of and for the purposes
represented by the application, as amended, and of said orders with respect
thereto.
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4. Filed herewith are the following exhibits:
Exhibit A - Copy of the prospectus with respect to
the Trust Preferred Securities, dated
January 17, 1996. (Filed electronically
January 19, 1996, in File Nos. 33-6 4125 and
33-64125-01.)
Exhibit B - Underwriting Agreement.
Exhibit C - Trust Agreement, dated as of November 8, 1995.
Exhibit D - Amended and Restated Trust Agreement, dated as of
January 1, 1996.
Exhibit E - Subordinated Note Indenture dated as of January
1, 1996, between the Company and Chemical Bank,
as trustee.
Exhibit F - Supplemental Indenture to the Subordinated Note
Indenture dated as of January 1, 1996, between
the Company and Chemical Bank, as trustee.
Exhibit G - Guarantee Agreement, dated as of January 1, 1996,
with respect to Trust Preferred Securities.
Exhibit H - Opinion of Balch & Bingham dated February 5, 1996.
Dated February 8, 1996 ALABAMA POWER COMPANY
By /s/Wayne Boston
Wayne Boston
Assistant Secretary
Exhibit B
Preferred Securities
ALABAMA POWER CAPITAL TRUST I
(a Delaware Trust)
7.375 % Trust Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
UNDERWRITING AGREEMENT
January 17, 1996
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Alabama Power Capital Trust I (the "Trust"), a
statutory business trust organized under the Business Trust
Act (the "Delaware Act") of the State of Delaware (Chapter
38, Title 12, of the Delaware Code, 12 Del. C. (Sec) 3801 et
seq.), and Alabama Power Company, an Alabama corporation
(the "Company" and, together with the Trust, the
"Offerors"), confirm their agreement (the "Agreement") with
you and each of the other Underwriters named in Schedule I
hereto (collectively, the "Underwriters", which term shall
also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom you are acting as
representative (in such capacity, you shall hereinafter be
referred to as the "Representative"), with respect to the
sale by the Trust and the purchase by the Underwriters,
acting severally and not jointly, of the respective numbers
of 7.375% Trust Preferred Securities (liquidation amount $25
per preferred security) of the Trust ("Preferred
Securities") set forth in Schedule I. The Preferred
Securities will be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption and
otherwise (the "Guarantee") pursuant to the Preferred
Securities Guarantee Agreement (the "Guarantee Agreement"),
dated as of January 1, 1996, between the Company and
Chemical Bank, as trustee (the "Guarantee Trustee"). The
Preferred Securities and the related Guarantee are referred
to herein as the "Securities."
The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (File Nos. 33-64125 and 33-64125-01)
for the registration under the Securities Act of 1933, as
amended (the "1933 Act") of (i) the Preferred Securities,
(ii) the Guarantee, and (iii) the Junior Subordinated Notes
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(as defined below). Such registration statement, as it may
have been amended through the time the same first became
effective, including the financial statements, the documents
incorporated or deemed incorporated therein by reference,
pursuant to Item 12 of Form S-3 under the 1933 Act, the
exhibits thereto and the information deemed to be part
thereof pursuant to Rule 430A(b) of the Commission's General
Rules and Regulations under the 1933 Act (the "1933 Act
Regulations"), being herein called the "Registration
Statement", the prospectus included in the Registration
Statement when the same became effective that omits the
information, if any, deemed to be a part thereof pursuant to
Rule 430A(b) of the 1933 Act Regulations, being herein
called the "Preliminary Prospectus", and the prospectus,
including the price and terms of the offering, the interest
rate, maturity date and certain other information filed with
the Commission in accordance with Rule 430A and pursuant to
Rule 424(b) of the 1933 Act Regulations, including all
documents then incorporated or deemed to have been
incorporated therein by reference, being herein called the
"Prospectus." Any reference herein to the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein
pursuant to Item 12 or Form S-3 under the 1933 Act, as of
the date of such Preliminary Prospectus or Prospectus, as
the case may be. Any reference to any amendment or
supplement to the Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of
1934, as amended (the "1934 Act") and incorporated by
reference in such Preliminary Prospectus or Prospectus, as
the case may be. Any reference to any amendment to the
Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the 1934 Act after the effective
date of the Registration Statement that is incorporated by
reference in the Registration Statement. The documents
filed under the 1934 Act, including the financial statements
and schedules and other information contained or
incorporated by reference therein, that are or are deemed to
be incorporated by reference in the Registration Statement,
Preliminary Prospectus or the Prospectus are herein called
the "Incorporated Documents."
The Offerors understand that the Underwriters
propose to make a public offering of the Securities as soon
as the Representative deems advisable after this Agreement
has been executed and delivered. The entire proceeds from
the sale of the Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its
common securities (the "Common Securities") and will be used
by the Trust to purchase the $100,000,000 of 7.375% Junior
Subordinated Notes (the "Junior Subordinated Notes") to be
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issued by the Company. The Preferred Securities and the
Common Securities will be issued pursuant to the Amended and
Restated Trust Agreement, dated as of January 1, 1996 (the
"Trust Agreement"), among the Company, as Depositor, J.
Randy DeRieux and William E. Zales, Jr. (the "Administrative
Trustees"), Chemical Bank Delaware, a Delaware banking
corporation (the "Delaware Trustee") and Chemical Bank, a
New York banking corporation (the "Property Trustee" and,
together with the Delaware Trustee and the Administrative
Trustees, the "Trustees"), as trustees, and the holders from
time to time of undivided beneficial interests in the assets
of the Trust. The Junior Subordinated Notes will be issued
pursuant to an indenture, dated as of January 1, 1996 (the
"Base Indenture"), between the Company and Chemical Bank, as
trustee (the "Debt Trustee"), and a first supplemental
indenture to the Base Indenture, dated as of January 1, 1996
(the "Supplemental Indenture," and together with the Base
Indenture and any other amendments or supplements thereto,
the "Indenture"), between the Company and the Debt Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The
Offerors jointly and severally represent and warrant to each
Underwriter as follows:
(a) The Registration Statement as heretofore
filed with the Commission, a copy of which as so filed
has been delivered to the Underwriters, has been
declared effective.
(b) No order suspending the effectiveness of the
Registration Statement or otherwise preventing or
suspending the use of the Preliminary Prospectus or the
Prospectus has been issued by the Commission and is in
effect and no proceedings for that purpose are pending
before or, to the knowledge of the Company, threatened
by, the Commission. The Registration Statement, the
Preliminary Prospectus and the Prospectus comply in all
material respects, in form and in substance, with the
provisions of the 1933 Act, 1934 Act, the Trust
Indenture Act of 1939 (the "1939 Act"), the 1933 Act
Regulations, rules and regulations under the 1934 Act
(the "1934 Act Regulations"), and the rules and
regulations under the 1939 Act (the "1939 Act
Regulations"), and neither the Registration Statement
nor the Prospectus contains an untrue statement of a
material fact or omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; all Incorporated
Documents subsequently filed with the Commission, will
comply in all material respects with the applicable
provisions of the 1934 Act and the 1934 Act Regulations
and, when read together with the Prospectus as it
otherwise may be amended or supplemented, will not
contain an untrue statement of a material fact or omit
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to state a material fact required to be stated therein
or necessary to make the statements therein not
misleading, provided, that the foregoing representa-
tions and warranties in this subsection (b) shall not
apply to statements in or omissions from the Registra-
tion Statement or the Prospectus made in reliance upon
information furnished herein or in writing to the
Offerors by the Underwriters or on the Underwriters'
behalf for use in the Registration Statement or
Prospectus; and provided, further, that the foregoing
representations and warranties are given on the basis
that any statement contained in an Incorporated
Document shall be deemed to be modified or superseded
for purposes of the Registration Statement or
Prospectus to the extent that the statement has been
modified or superseded by any statement in a
subsequently filed Incorporated Document or in the
Registration Statement or Prospectus.
(c) With respect to the Registration Statement,
the conditions for use of Form S-3, as set forth in the
General Instructions thereof, have been satisfied.
(d) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein,
there has been no material adverse change in the
business, properties or financial condition of the
Company.
(e) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein,
there has not been any material adverse change or, to
the best of the Company's knowledge, any development
involving a prospective material adverse change in or
affecting the business, properties or financial
condition of the Trust.
(f) The Company is a corporation duly organized
and existing under the laws of the State of Alabama,
and has due corporate authority to carry on the public
utility business in which it is engaged and to own and
operate the properties used by it in such business, to
enter into and perform its obligations under this
Agreement, the Trust Agreement, the Indenture and the
Guarantee Agreement and to purchase, own, and hold the
Common Securities issued by the Trust and to issue and
deliver the Junior Subordinated Notes and the
Guarantee.
(g) The Trust has been duly created and is
validly existing and in good standing as a business
trust under the Delaware Act with the power and
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authority to own property and to conduct its business
as described in the Registration Statement and
Prospectus and to enter into and perform its
obligations under this Agreement and the Trust
Agreement; the Trust is duly qualified to transact
business as a foreign company and is in good standing
in any other jurisdiction in which such qualification
is necessary, except to the extent that the failure to
so qualify or be in good standing would not have a
material adverse effect on the Trust; the Trust is not
a party to or otherwise bound by any agreement other
than those described in the Prospectus; the Trust is
and will be classified for United States federal income
tax purposes as a grantor trust and not as an
association taxable as a corporation; and the Trust is
and will be treated as a consolidated subsidiary of the
Company pursuant to generally accepted accounting
principles.
(h) The Common Securities have been duly
authorized by the Trust Agreement and, when issued and
delivered by the Trust to the Company against payment
therefor as described in the Registration Statement and
Prospectus, will be validly issued and (subject to the
terms of the Trust Agreement) fully paid and
non-assessable undivided beneficial interests in the
Trust and will conform in all material respects to all
statements relating thereto contained in the
Prospectus; the issuance of the Common Securities is
not subject to preemptive or other similar rights; and,
on the Closing Date (as defined herein), all of the
issued and outstanding Common Securities of the Trust
will be directly owned by the Company, free and clear
of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(i) This Agreement has been duly authorized,
executed and delivered by each of the Offerors.
(j) The Trust Agreement has been duly authorized
by the Company and, on the Closing Date, will have been
duly executed and delivered by the Company and the
Administrative Trustees, and assuming due
authorization, execution and delivery of the Trust
Agreement by the Delaware Trustee and the Property
Trustee, the Trust Agreement will, on the Closing Date,
be a valid and binding obligation of the Company and
the Administrative Trustees, enforceable against the
Company and the Administrative Trustees in accordance
with its terms, except to the extent that enforcement
thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent
conveyance, moratorium or other similar laws affecting
creditors, rights generally or (2) general principles
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of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) (the
"Enforceability Exceptions") and will conform in all
material respects to all statements relating thereto in
the Prospectus; and, on the Closing Date, the Trust
Agreement will have been duly qualified under the 1939
Act.
(k) The Guarantee Agreement has been duly
authorized by the Company and, on the Closing Date,
will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and
delivery of the Guarantee Agreement by the Guarantee
Trustee, the Guarantee Agreement will, on the Closing
Date, constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance
with its terms except to the extent that enforcement
thereof may be limited by the Enforceability
Exceptions, and each of the Guarantee and the Guarantee
Agreement will conform in all material respects to all
statements relating thereto contained in the
Prospectus; and, on the Closing Date, the Guarantee
Agreement will have been duly qualified under the 1939
Act.
(l) The Preferred Securities have been duly
authorized by the Trust Agreement and, when issued and
delivered by the Trust pursuant to this Agreement
against payment of the consideration set forth herein,
will be validly issued and (subject to the terms of the
Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the Trust, will be
entitled to the benefits of the Trust Agreement and
will conform in all material respects to all statements
relating thereto contained in the Prospectus; the
issuance of the Preferred Securities is not subject to
preemptive or other similar rights; (subject to the
terms of the Trust Agreement) holders of Preferred
Securities will be entitled to the same limitation of
personal liability under Delaware law as extended to
stockholders of private corporations for profit.
(m) The Indenture has been duly authorized by the
Company and, on the Closing Date, will have been duly
executed and delivered by the Company, and, assuming
due authorization, execution and delivery of the
Indenture by the Debt Trustee, the Indenture will, on
the Closing Date, constitute a valid and binding
obligation of the Company, enforceable against the
Company in accordance with its terms except to the
extent that enforcement thereof may be limited by the
Enforceability Exceptions; the Indenture will conform
in all material respects to all statements relating
thereto contained in the Prospectus; and, on the
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Closing Date, the Indenture will have been duly
qualified under the 1939 Act.
(n) The issuance and delivery of the Junior
Subordinated Notes have been duly authorized by the
Company and, on the Closing Date, will have been duly
executed by the Company and, when authenticated in the
manner provided for in the Indenture and delivered
against payment therefor as described in the
Prospectus, will constitute valid and legally binding
obligations of the Company, enforceable against the
Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form
contemplated by, and entitled to the benefits of, the
Indenture and will conform in all material respects to
all statements relating thereto in the Prospectus.
(o) The Company's obligations under the Guarantee
(i) are subordinate and junior in right of payment to
all liabilities of the Company, except those obliga-
tions or liabilities made pari passu or subordinate by
their terms, (ii) are pari passu with the preferred
stock issued by the Company and (iii) are senior to all
common stock of the Company.
(p) The Junior Subordinated Notes are
subordinated and junior in right of payment to all
"senior indebtedness" (as defined in the Indenture) of
the Company.
(q) Each of the Administrative Trustees of the
Trust is an employee of the Company and has been duly
authorized by the Company to execute and deliver the
Trust Agreement.
(r) Neither the Trust nor the Company nor any of
the Company's other subsidiaries is and, after giving
effect to the offering and sale of the Preferred
Securities, will be an "investment company" or an
entity "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act").
(s) The execution, delivery and performance by
the Offerors of this Agreement, the Trust Agreement,
the Preferred Securities, the Common Securities, the
Indenture, the Junior Subordinated Notes, the Guarantee
Agreement and the Guarantee and the consummation by the
Offerors of the transactions contemplated herein and
therein and compliance by the Offerors with their
respective obligations hereunder and thereunder shall
have been duly authorized by all necessary action
(corporate or otherwise) on the part of the Offerors
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and do not and will not result in any violation of the
charter or bylaws of the Company, or the Trust
Agreement or related Certificate of Trust and do not
and will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or
assets of the Trust or the Company under (A) any
contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the
Trust or the Company is a party or by which either of
them may be bound or to which any of their properties
may be subject (except for conflicts, breaches or
defaults which would not, individually or in the
aggregate, be materially adverse to the Trust or the
Company or materially adverse to the transactions
contemplated by this Agreement), or (B) any existing
applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality
or court, domestic or foreign, or any regulatory body
or administrative agency or other governmental body
having jurisdiction over the Trust or the Company, or
any of their respective properties.
(t) No authorization, approval, consent or order
of any court or governmental authority or agency is
necessary in connection with the issuance and sale of
the Common Securities or the offering of the Preferred
Securities, the Junior Subordinated Notes or the
Guarantee or the transactions contemplated in this
Agreement, except (A) such as may be required under the
1933 Act or the 1933 Act Regulations; (B) such as may
be required under the Public Utility Holding Company
Act of 1935, as amended (the "1935 Act"); (C) the
qualification of the Trust Agreement, the Guarantee
Agreement and the Indenture under the 1939 Act; (D) the
approval of the Alabama Commission; and (E) such
consents, approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws in connection with the
purchase of the Preferred Securities and the
distribution of the Preferred Securities by the
Underwriters.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS;
CLOSING.
(a) On the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Trust agrees to sell to
each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase
from the Trust, at the price per security set forth in
Schedule II hereto, the number of Preferred Securities set
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forth in Schedule I opposite the name of such Underwriter,
plus any additional number of Preferred Securities that such
Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
The purchase price per security to be paid by the
several Underwriters for the Preferred Securities shall be
an amount equal to the initial public offering price set
forth on Schedule II, which is a fixed price determined by
agreement between the Representative and the Offerors. As
compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the
sale of the Preferred Securities will be used to purchase
the Junior Subordinated Notes of the Company, the Company
hereby agrees to pay on the Closing Date (as defined below)
to the Representative, for the accounts of the several
Underwriters, a commission per Preferred Security as set
forth on Schedule II for the Preferred Securities to be
delivered by the Trust hereunder on the Closing Date.
(b) Payment of the purchase price for, and
delivery of certificates for, the Preferred Securities shall
be made at the offices of Dewey Ballantine, 1301 Avenue of
the Americas, New York, New, York or at such other place as
shall be agreed upon by the Representative and the Trust, at
10:00 A.M., New York time, on January 24, 1996 (unless
postponed in accordance with the provisions of Section 10)
or such other time, place or date as shall be agreed upon by
the Representative, the Trust and the Company (such time and
date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Trust by
check or checks in federal funds at the Closing Date,
against delivery to the Representative for the respective
accounts of the Underwriters of certificates for the
Preferred Securities to be purchased by them. Certificates
for the Preferred Securities shall be in such denominations
and registered in such names as the Representative may
request in writing at least two business days before the
Closing Date. It is understood that each Underwriter has
authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase
price for, the Preferred Securities which it has agreed to
purchase. The Representative, individually and not as
Representative of the Underwriters, may (but shall not be
obligated to) make payment of the purchase price for the
Preferred Securities to be purchased by any Underwriter
whose check has not been received by the Closing Date, but
such payment shall not relieve such Underwriter from its
obligations hereunder.
The certificate(s) for the Preferred Securities
will be made available for examination and packaging by the
Representative not later than 12:00 Noon, New York time, on
the last business day prior to the Closing Date.
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On the Closing Date, the Company will pay, or
cause to be paid, the commission payable at such time to the
Underwriters under Section 2 hereof by check or checks
payable to the Representative in federal funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of
the Offerors jointly and severally covenants with each
Underwriter as follows:
(a) The Offerors, on or prior to the Closing
Date, will deliver to the Underwriters conformed copies
of the Registration Statement as originally filed and
of all amendments thereto, heretofore or hereafter
made, including any post-effective amendment (in each
case including all exhibits filed therewith, and
including unsigned copies of each consent and
certificate included therein or filed as an exhibit
thereto, except exhibits incorporated by reference,
unless specifically requested). As soon as the Company
is advised thereof, it will advise the Representative
orally of the issuance of any stop order under the 1933
Act with respect to the Registration Statement, or the
institution of any proceedings therefor, of which the
Company shall have received notice, and will use its
best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof, if
issued. The Offerors will deliver to the Underwriters
sufficient conformed copies of the Registration
Statement, the Preliminary Prospectus and Prospectus
and of all amendments thereto (in each case without
exhibits) for distribution to each Underwriter and,
from time to time, as many copies of the Preliminary
Prospectus and Prospectus as the Underwriters may
reasonably request for the purposes contemplated by the
1933 Act or the 1934 Act.
(b) The Offerors will furnish the Underwriters
with copies of each amendment and supplement to the
Preliminary Prospectus and Prospectus relating to the
offering of the Preferred Securities in such quantities
as the Underwriters may from time to time reasonably
request. If, during the period when the delivery of a
prospectus shall be required by law in connection with
the sale of any Preferred Securities by an Underwriter
or dealer, any event relating to or affecting the
Company, or of which the Company shall be advised in
writing by the Underwriters, shall occur, which in the
opinion of the Company or of Underwriters' counsel
should be set forth in a supplement to or an amendment
of the Preliminary Prospectus or Prospectus, as the
case may be, in order to make the Preliminary
Prospectus or Prospectus not misleading in the light of
the circumstances when it is delivered, or if for any
other reason it shall be necessary during such period
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to amend or supplement the Preliminary Prospectus or
Prospectus or to file under the 1934 Act any document
incorporated by reference in the Preliminary Prospectus
or Prospectus in order to comply with the 1933 Act or
the 1934 Act, the Company forthwith will (i) notify the
Underwriters to suspend solicitation of purchases of
the Preferred Securities and (ii) at its expense, make
any such filing or prepare and furnish to the
Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments
to the Preliminary Prospectus or Prospectus which will
supplement or amend the Preliminary Prospectus or
Prospectus so that, as supplemented or amended, it will
not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to
make the statements therein, in the light of the
circumstances when the Preliminary Prospectus or
Prospectus is delivered, not misleading or which will
effect any other necessary compliance. In case any
Underwriter is required to deliver a prospectus in
connection with the sale of any Preferred Securities
after the expiration of the period specified in the
preceding sentence, the Company, upon the request of
such Underwriter, will furnish to such Underwriter, at
the expense of such Underwriter, a reasonable quantity
of a supplemented or amended prospectus, or supplements
or amendments to the Preliminary Prospectus or
Prospectus, complying with Section 10(a) of the 1933
Act. During the period specified in the second
sentence of this subsection, the Company will continue
to prepare and file with the Commission on a timely
basis all documents or amendments required under the
1934 Act and the 1934 Act Regulations; provided, that
the Company shall not file such documents or amendments
without also furnishing copies thereof prior to such
filing to the Underwriters and Dewey Ballantine.
(c) The Offerors will endeavor, in cooperation
with the Underwriters, to qualify the Preferred
Securities and, to the extent required or advisable,
the Guarantee and the Junior Subordinated Notes, for
offering and sale under the applicable securities laws
of such states and the other jurisdictions of the
United States as the Representative may designate;
provided, however, that neither of the Offerors shall
be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file
a consent to service of process or to file annual
reports or to comply with any other requirements in
connection with such qualification deemed by the
Company to be unduly burdensome.
(d) The Company will make generally available to
its security holders as soon as practicable but not
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later than 45 days after the close of the period
covered thereby, an earnings statement of the Company
(in form complying with the provisions of Rule 158 of
the 1933 Act Regulations) covering a twelve-month
period beginning not later than the first day of the
Company's fiscal quarter next following the "effective
date" (as defined in Rule 158) of the Registration
Statement.
(e) The Offerors will use best efforts to effect
the listing of the Preferred Securities on the New York
Stock Exchange; if the Preferred Securities are
exchanged for Junior Subordinated Notes, the Company
will use its best efforts to effect the listing of the
Junior Subordinated Notes on the exchange on which the
Preferred Securities were then listed.
(f) During a period of 30 days from the date of
this Agreement, neither the Trust nor the Company will,
without the Representative's prior written consent,
directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any
Preferred Securities, any security convertible into or
exchangeable into or exercisable for Preferred
Securities or the Junior Subordinated Notes or any debt
securities substantially similar to the Junior
Subordinated Notes or equity securities substantially
similar to the Preferred Securities (except for the
Junior Subordinated Notes and the Preferred Securities
issued pursuant to this Agreement).
SECTION 4. PAYMENT OF EXPENSES. The Company will
pay all expenses incident to the performance of each
Offerors obligations under this Agreement, including but not
limited to, the expenses of (i) the printing and filing of
the Registration Statement as originally filed and of each
amendment thereto, (ii) the preparation, issuance and
delivery of the certificate(s) for the Preferred Securities
to the Underwriters, (iii) the fees and disbursements of the
Company's and the Trust's counsel and accountants, (iv) the
qualification of the Preferred Securities and, to the extent
required or advisable, the Guarantee and the Junior
Subordinated Notes, under securities laws in accordance with
the provisions of Section 3(c) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with
the preparation of any blue sky survey (such fees and
disbursements of counsel shall not exceed $3,500), (v) the
printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each
amendment thereto, of the Preliminary Prospectus, and of the
Prospectus and any amendments or supplements to the
Preliminary Prospectus or Prospectus, (vi) the printing and
delivery to the Underwriters of copies of any blue sky
12
<PAGE>
survey, (vii) the fee of the National Association of
Securities Dealers, Inc. in connection with its review of
the offering contemplated by this Agreement, if applicable,
(viii) the fees and expenses of the Debt Trustee, including
the fees and disbursements of counsel for the Debt Trustee
in connection with the Indenture and the Junior Subordinated
Notes, (ix) the fees and expenses of the Delaware Trustee,
the Property Trustee and the Guarantee Trustee, including
the fees and disbursements of counsel for the Delaware
Trustee in connection with the Trust Agreement and the
related Certificate of Trust, (x) the fees and disbursements
of Delaware counsel to the Trust, (xi) any fees payable in
connection with the rating of the Preferred Securities and
Junior Subordinated Notes, (xii) the fees and expenses
incurred in connection with the listing of the Preferred
Securities and, if applicable, the Junior Subordinated Notes
on the New York Stock Exchange, and (xiii) the cost and
charges of any transfer agent or registrar and (xiv) the
cost of qualifying the Preferred Securities with The
Depository Trust Company.
Except as otherwise provided in Section 9 hereof,
the Underwriters shall pay all other expenses incurred by
them in connection with their offering of the Preferred
Securities, including fees and disbursements of their
counsel, Dewey Ballantine.
SECTION 5. CONDITIONS OF UNDERWRITERS'
OBLIGATIONS. The obligations of the Underwriters to
purchase and pay for the Preferred Securities are subject to
the following conditions:
(a) No stop order suspending the effectiveness of
the Registration Statement shall be in effect on the
Closing Date and no proceedings for that purpose shall
be pending before, or to the knowledge of the Company
threatened by, the Commission on such date. If filing
of the Preliminary Prospectus or Prospectus, or any
supplement thereto, is required pursuant to Rule 424,
the Preliminary Prospectus or Prospectus, and any such
supplement, shall have been filed in the manner and
within the time period required by Rule 424. The
Underwriters shall have received, prior to payment for
the Preferred Securities, the certificate required
under Section 5(c)(7) hereof.
(b) Orders of the Alabama Commission and the
Commission permitting the transactions contemplated
hereby substantially in accordance with the terms and
conditions hereof shall be in full force and effect and
shall contain no provision unacceptable to the
Underwriters or the Company (but all provisions of such
order or orders heretofore entered, copies of which
have heretofore been delivered to the Representative,
13
<PAGE>
are deemed acceptable to the Underwriters and the
Company and all provisions of such order or orders
hereafter entered shall be deemed acceptable to the
Underwriters and the Company unless within 24 hours
after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties
to the effect that such order contains an unacceptable
provision).
(c) On the Closing Date the Representative shall
have received:
(1) The opinion, dated the Closing Date, of
Balch & Bingham, general counsel for the Company,
substantially in the form attached hereto as Schedule
III-A.
(2) The opinion, dated the Closing Date, of
Troutman Sanders LLP, counsel for the Company,
substantially in the form attached hereto as Schedule
III-B.
(3) The opinion, dated the Closing Date, of
Richards, Layton & Finger, Delaware counsel to the
Trust, substantially in the form attached hereto as
Schedule IV.
(4) The opinion, dated the Closing Date, of
Richards, Layton & Finger, Delaware counsel to Chemical
Bank Delaware, as Delaware Trustee under the Trust
Agreement, substantially in the form attached hereto as
Schedule V.
(5) The opinion, dated the Closing Date, of
Cravath, Swaine & Moore, counsel to the Property
Trustee, the Guarantee Trustee and the Debt Trustee,
substantially in the form attached hereto as Schedule
VI.
(6) The favorable opinion, dated as of the
Closing Date, of Dewey Ballantine, counsel for the
Underwriters, substantially in the form attached hereto
as Schedule VII.
(7) At the Closing Date, there shall not
have been, since the date hereof or since the
respective dates as of which information is given in
the Registration Statement and the Prospectus, any
material adverse change in the business, properties or
financial condition of the Trust or the Company,
whether or not arising in the ordinary course of
business, and the Representative shall have received a
certificate of the Chairman of the Board, the President
or any Vice President of the Company and a certificate
14
<PAGE>
of the Administrative Trustees of the Trust, and dated
as of the Closing Date, to the effect that (i) there
has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are
true and correct with the same force and effect as
though expressly made at and as of the Closing Date,
(iii) the Trust and the Company have complied with all
agreements and satisfied all conditions on its part to
be performed or satisfied on or prior to the Closing
Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
initiated or, to the knowledge of the Company,
threatened by the Commission.
(8) On this Closing Date, the Representative
shall have received from Arthur Andersen LLP a letter
dated the Closing Date to the effect that: (A) they are
independent public accountants with respect to the
Company within the meaning of the 1933 Act and the 1933
Act Regulations; (B) in their opinion, the financial
statements audited by them and incorporated by
reference in the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act
Regulations, and (C) on the basis of certain limited
procedures performed through a specified date not more
than five business days prior to the date of such
letter, namely (i) reading the minute books of the
Company; (ii) performing the procedures specified by
the American Institute of Certified Public Accountants
("AICPA") for a review of interim financial information
as described in Statement on Auditing Standards No. 71,
"Interim Financial Information", on the unaudited
financial statements, if any, of the Company
incorporated in the Prospectus and of the latest
available unaudited financial statements of the
Company, if any, as of a date subsequent to the date of
those incorporated in the Prospectus; and (iii) making
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters
regarding such unaudited financial statements or any
specified unaudited amounts derived therefrom (it being
understood that the foregoing procedures do not
constitute an audit performed in accordance with
generally accepted auditing standards and they would
not necessarily reveal matters of significance with
respect to the comments made in such letters, and
accordingly that Arthur Andersen LLP make no
representations as to the sufficiency of such
procedures for the Underwriters' purposes), nothing
came to their attention that caused them to believe
that: (1) any material modifications should be made to
the unaudited condensed financial statements, if any,
15
<PAGE>
incorporated in the Prospectus, for them to be in
conformity with generally accepted accounting
principles; (2) such unaudited condensed financial
statements do not comply as to form in all material
respects with the applicable accounting requirements of
the 1934 Act as it applies to Form 10-Q and the related
published rules and regulations thereunder; (3) the
unaudited amounts for Operating Revenues, Income Before
Interest Charges and Net Income After Dividends on
Preferred Stock and the unaudited Ratios of Earnings to
Fixed Charges and Earnings to Fixed Charges Plus
Preferred Dividend Requirements (Pre-Income Tax Basis)
set forth in the Prospectus do not agree with the
amounts set forth in or derived from the unaudited
financial statements for the same period or were not
determined on a basis substantially consistent with
that of the corresponding audited amounts or ratios
included or incorporated by reference in the
Registration Statement; (4) as of a specified date not
more than five business days prior to the date of
delivery of such letter, there has been any change in
the capital stock or long-term debt of the Company or
any decrease in net assets as compared with amounts
shown in the latest audited balance sheet incorporated
in the Prospectus, except in each case for changes or
decreases which (i) the Prospectus discloses have
occurred or may occur, (ii) are occasioned by the
declaration of dividends, (iii) are occasioned by draw-
downs under existing pollution control financing
arrangements, (iv) are occasioned by draw-downs and
regularly scheduled payments of capitalized lease
obligations, (v) are occasioned by the purchase or
redemption of bonds or stock to satisfy mandatory or
optional redemption provisions relating thereto, or
(vi) are disclosed in such letter; and (5) the
unaudited amounts for Operating Revenues, Income Before
Interest Charges and Net Income After Dividends on
Preferred Stock and the unaudited Ratios of Earnings to
Fixed Charges and Earnings to Fixed Charges Plus
Preferred Dividend Requirements (Pre-Income Tax Basis)
for any period subsequent to those set forth in (3)
above, which if available shall be set forth in such
letter do not agree with the amounts set forth in or
derived from the unaudited financial statements for the
same period or were not determined on a basis
substantially consistent with that of the corresponding
audited amounts or ratios included or incorporated by
reference in the Prospectus.
(9) On the Closing Date, counsel for the
Underwriters shall have been furnished with such
documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and
sale of the Preferred Securities as herein contemplated
16
<PAGE>
and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Offerors,
in connection with the issuance and sale of the
Preferred Securities as herein contemplated shall be
satisfactory in form and substance to the
Representative and Dewey Ballantine, counsel for the
Underwriters.
(10) On the Closing Date, the Preferred
Securities shall have been approved for listing on the
New York Stock Exchange upon notice of issuance.
(11) A Special Event (as defined in the
Prospectus) shall not have occurred and be continuing.
(12) That no amendment or supplement to the
Registration Statement or the Prospectus filed
subsequent to the date of this Agreement (including any
filing made by the Company pursuant to Section 13 or 14
of the Exchange Act) shall be unsatisfactory in form to
Dewey Ballantine or shall contain information (other
than with respect to an amendment or supplement
relating solely to the activity of any Underwriter or
Underwriters) which, in the reasonable judgment of the
Representative, shall materially impair the market-
ability of the Preferred Securities.
(13) The Company and the Trust shall have
performed such of its obligations when and as provided
under this Agreement.
If any condition specified in this Section
shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the
Representative by notice to the Offerors at any time prior
to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided
in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATION OF
THE OFFERORS.
The obligations of the Offerors shall be subject
to the conditions set forth in the first sentence of Section
5(a) and in Section 5(b). In case such conditions shall not
have been fulfilled, this Agreement may be terminated by the
Company by mailing or delivering written notice thereof to
the Underwriters. Any such termination shall be without
liability of any party to any other party except as
otherwise provided in Sections 4, 7 and 9(b) hereof.
17
<PAGE>
SECTION 7. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to
indemnify and hold harmless each of the Underwriters and
each person, if any, who controls any such Underwriter
within the meaning of Section 15 of the 1933 Act or Section
20(a) of the 1934 Act, against any and all losses, claims,
damages or liabilities, joint or several, to which they or
any of them may become subject under the 1933 Act, 1934 Act
or otherwise, and, promptly after receipt of invoices
therefrom for any legal and other expenses reasonably
incurred by any Underwriter or controlling person in
investigating or defending or preparing to defend against
any such loss, claim, damage or liability, to reimburse the
Underwriters and such controlling person or persons, if any,
for any legal or other expenses incurred by them in
connection with defending any actions, insofar as such
losses, claims, damages, liabilities or actions arise out of
or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a the Preliminary
Prospectus, or in the Registration Statement, or in the
Prospectus or, if the Offerors shall furnish to the
Underwriters any amendments or any supplements thereto, or
shall make any filings pursuant to Section 13 or 14 of the
1934 Act which are incorporated therein by reference, in the
Preliminary Prospectus or Prospectus as so amended or
supplemented, or arise out of or are based upon any omission
or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or actions arise out of
or are based upon any such untrue statement or alleged
untrue statement or omission or alleged omission which was
made in such Registration Statement, Preliminary Prospectus
or Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by, or
through the Representative on behalf of, any Underwriter for
use therein and except that this indemnity with respect to
the Preliminary Prospectus and the Prospectus, if the
Offerors shall have furnished any amendment or supplement
thereto, shall not inure to the benefit of any Underwriter
(or of any person controlling such Underwriter) on account
of any losses, claims, damages, liabilities or actions
arising from the sale of the Preferred Securities to any
person if a copy of the Preliminary Prospectus or Prospectus
(exclusive of documents incorporated therein by reference
pursuant to Item 12 of Form S-3), as the same may then be
amended or supplemented, shall not have been sent or given
by or on behalf of such Preferred Securities to such person
with or prior to the written confirmation of the sale
involved and the untrue statement or alleged untrue
statement or omission or alleged omission was corrected in
the Preliminary Prospectus or Prospectus as supplemented or
amended at the time of such confirmation. Each Underwriter
18
<PAGE>
agrees, within ten days after the receipt by it of notice of
the commencement of any action in respect of which indemnity
may be sought by it, or by any person controlling it, from
the Offerers on account of its agreement contained in this
Section 7, to notify the Offerors in writing of the
commencement thereof, provided, however, that the failure to
notify the Offerors shall not relieve it from any liability
which it may have to an Underwriter or controlling person
under this Section, except to the extent that it has been
materially prejudiced by such failure. In case any such
action shall be brought against the Underwriters or any such
person controlling such Underwriters and such Underwriter
shall notify the Offerors of the commencement thereof as
above provided, the Offerors shall be entitled to
participate in (and, to the extent that they shall wish,
including the selection of counsel, to direct) the defense
thereof, at their own expense. In case the Offerors elect
to direct such defense and select such counsel, any
Underwriter or controlling person shall have the right to
employ its own counsel, but, in any such case, the fees and
expenses of such counsel shall be at the expense of such
Underwriter or controlling person unless (i) the employment
of such counsel has been authorized in writing by the
Offerors in connection with defending such action or (ii)
the named parties to any such action (including any
impleaded parties) include both any Underwriter or any
controlling person and the Offerors, and any Underwriter or
any controlling person shall have been advised by its
counsel that a conflict of interest between the Offerors and
any Underwriter or any controlling person may arise (and the
Company's counsel shall have concurred with such advice) and
for this reason it is not desirable for the Company's
counsel to represent both the indemnifying party and the
indemnified party (it being understood, however, that the
Company shall not, in connection with any one such action or
separate but substantially similar or related actions in the
same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of
attorneys for any Underwriter or any controlling person
(plus any local counsel retained by any Underwriter or any
controlling person in their reasonable judgement) which firm
or firms shall be designated in writing by any Underwriter
or any controlling person. No indemnifying party shall,
without the written consent of the indemnified party, effect
the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification may be
sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does
not include any statement as to, or an admission of, fault,
19
<PAGE>
culpability or a failure to act, by or on behalf of any
indemnified party.
(b) The Company agrees to indemnify the Trust
against all loss, liability, claim, damage and expense
whatsoever, as due from the Trust under Section 7(a)
hereunder.
(c) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company,its
directors and such of its officers as have been signed the
Registration Statement, and each other Underwriter and each
person, if any, who controls the Offerors or any such other
Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20(a) of the 1934 Act to the same extent and upon
the same terms as the indemnity agreement of the Offerors
set forth in Section 7(a) hereof, but only with respect to
alleged untrue statements or omissions made in the
Registration Statement, the Preliminary Prospectus or the
Prospectus, or the Preliminary Prospectus or Prospectus as
amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Offerors by, or
through the Representative on behalf of, such Underwriter
for use therein.
Each Underwriter represents and warrants that its
commitment to buy the Preferred Securities will not result
in a violation of the financial responsibility requirements
of Rule l5c3-l under the 1934 Act.
SECTION 8. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE DELIVERY.
All representationes, warranties and agreements
contained in this Agreement, or contained in certificates of
officers or Trustees of the Offerors submitted pursuant
hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by, or on behalf of
the Offerors and shall survive delivery of the Preferred
Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this
Agreement, by notice to the Offerors, at any time at or
prior to the Closing Date if (i) trading in securities on
the New York Stock Exchange shall has been generally
suspended, (ii) minimum or maximum ranges for prices shall
have been generally the established on the New York Stock
Exchange by the Commission or by to New York Stock Exchange,
(iii) a general banking moratorium shall have been declared
by federal or New York State authorities, (iv) there shall
have occurred any outbreak or escalation of major
20
<PAGE>
hostilities in which the United States is involved, any
declaration of war by the United States Congress or any
other substantial national or international calamity or
emergency affecting the United States, in any such case
provided for in clauses (i) through (iv) with the result
that, in the reasonable judgement of the Representative, the
marketability of the Preferred Securities shall have been
materially impaired.
(b) If this Agreement shall be terminated by the
Underwriters pursuant to subsection (a) above or because of
any failure or refusal on the part of the Offerors to comply
with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Offerors shall be unable
to perform their obligations under this Agreement, then in
any such case, the Company will reimburse the Underwriters,
severally, for the reasonable fees and disbursements of
Dewey Ballantine and for the out of pocket expenses (in an
amount not exceeding $10,000) reasonably incurred by the
Underwriters in making preparations for the purchase, sale
and delivery of the Preferred Securities and, upon such
reimbursement, the Offerors shall be absolved from any
further liability hereunder, except as provided in Sections
4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE
UNDERWRITERS. If one or more of the Underwriters shall fail
on the Closing Date to purchase the Preferred Securities
that it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representative
shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representative shall not have
completed such arrangements within such 24-hour period,
then:
(a) if the number of Defaulted Securities
does not exceed 10% of the Preferred Securities, each
of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount
thereof in the proportions that their respective
underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities
exceeds 10% of the Preferred Securities, this Agreement
shall terminate without liability on the part of any
non-defaulting Underwriter.
21
<PAGE>
No action taken pursuant to this Section shall
relieve any defaulting Underwriter from liability in respect
of its default.
In the event of any such default which does not
result in a termination of this Agreement, either the
Representative or the Offerors shall have the right to
postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the
Registration Statement or Prospectus or in any other
documents or arrangements.
SECTION 11. NOTICES. All notices and other
communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at 3
World Financial Center, New York, New York 10285, Attention:
Managing Director, Utilities Investment Banking; notices to
the Trust, and the Company shall be directed to them at 600
North 18th Street, Birmingham, Alabama 35291, Attention:
Art P. Beattie.
SECTION 12. PARTIES. This Agreement shall inure
to the benefit of and be binding upon the Underwriters, the
Trust, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation,
other than the Underwriters and the Trust and the Company
and their respective successors and the controlling persons
and officers, directors and trustees referred to in Section
7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be
for the sole and exclusive benefit of the Underwriters and
the Trust and the Company and their respective successors,
and said controlling persons and officers, directors and
trustees and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No
purchaser of Preferred Securities from any Underwriter shall
be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. This
Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except
as otherwise set forth herein, specified times of day refer
to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be
executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be
22
<PAGE>
an original, but all such respective counterparts shall
together constitute one and the same instrument.
23
<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to
the Trust and the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Trust and
the Company in accordance with its terms.
Very truly yours,
ALABAMA POWER COMPANY
By:______________________________
Title:___________________________
ALABAMA POWER CAPITAL TRUST I
By: Alabama Power Company, as
Depositor
_________________________________
Name:
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written
LEHMAN BROTHERS INC.
By:_________________________________________
Authorized Signatory
For itself and as Representative of the other
Underwriters named in Schedule I hereto.
24
<PAGE>
SCHEDULE I
NAME OF UNDERWRITER NUMBER OF SECURITIES
Lehman Brothers Inc. 548,000
Dean Witter Reynolds Inc. 548,000
A.G. Edwards & Sons, Inc. 548,000
Prudential Securities Incorporated 548,000
The Robinson-Humphrey Company, Inc. 548,000
J.C. Bradford & Co. 80,000
Edward D. Jones & Co. L.P. 80,000
Legg Mason Wood Walker, Incorporated 80,000
Morgan Keegan & Company, Inc. 80,000
PaineWebber Incorporated 80,000
Regions Investment Company, Inc. 80,000
Sterne, Agee & Leach, Inc. 80,000
Wheat, First Securities, Inc. 80,000
Cowen & Company 20,000
Craigie Incorporated 20,000
Dain Bosworth Incorporated 20,000
Davenport & Co. of Virginia, Inc. 20,000
Doft & Co., Inc. 20,000
Everen Securities, Inc. 20,000
Fahnestock & Co. Inc. 20,000
First Albany Corporation 20,000
Furman Selz LLC 20,000
J.J.B. Hilliard, W.L. Lyons, Inc. 20,000
Interstate/Johnson Lane Corporation 20,000
Janney Montgomery Scott Inc. 20,000
McDonald & Company Securities, Inc. 20,000
McGinn, Smith & Co., Inc. 20,000
Olde Discount Corporation 20,000
Parker/Hunter Incorporated 20,000
Piper Jaffray Inc. 20,000
Principal Financial Securities, Inc. 20,000
Pryor, McClendon, Counts & Co., Inc. 20,000
Rauscher Pierce Refsnes, Inc. 20,000
Raymond James & Associates, Inc. 20,000
Roney & Co. 20,000
Muriel Siebert & Co., Inc. 20,000
Stifel, Nicolaus & Company, Incorporated 20,000
U.S. Clearing Corp. 20,000
TOTAL 3,880,000
<PAGE>
SCHEDULE II
Initial public offering price per
Preferred Security (and purchase
price per security to be paid by
the several Underwriters): $25.00
Compensation per Preferred Security
to be paid by the Company to the
several Underwriters in respect of
their commitments: $.50 for
Preferred Securities sold to certain
institutions; $.7875 for Preferred
Securities sold to other purchasers
<PAGE>
Schedule III-A
[Letterhead of BALCH & BINGHAM]
January __, 1996
Lehman Brothers Inc., as Representative
3 World Financial Center
New York, New York 10285
ALABAMA POWER CAPITAL TRUST I
___% TRUST PREFERRED SECURITIES
Dear Sirs:
We have acted as general counsel to Alabama Power
Company (the "Company") in connection with (i) its formation
of Alabama Power Capital Trust I (the "Trust"), a Delaware
statutory business trust, pursuant to the amended and
restated trust agreement dated as of January 1, 1996 among
the Company and the trustees named therein (the "Trust
Agreement"); (ii) the Trust's issuance and sale of Preferred
Securities evidencing approximately a 97% undivided interest
in the Trust (the "Preferred Securities"); (iii) the Trust's
issuance and sale of Common Securities evidencing
approximately a 3% undivided interest in the Trust; (iv) the
Company's issuance and sale to the Trust of approximately
$100,000,000 of its ___% Junior Subordinated Notes (the
"Notes") pursuant to a Subordinated Note Indenture dated as
of January 1, 1996, by and between the Company and Chemical
Bank, as trustee, as supplemented by the First Supplemental
Indenture dated as of January 1, 1996 (collectively, the
"Indenture"); and (v) its issuance of a guarantee (the
"Guarantee") of the Preferred Securities pursuant to a
Preferred Securities Guarantee Agreement dated as of January
1, 1996 (the "Guarantee Agreement") between the Company and
Chemical Bank Delaware, as trustee. The Preferred
Securities are being sold to you today pursuant to the terms
of an Underwriting Agreement dated January __, 1996, among
the Company, the Trust and the underwriters named in
Schedule I thereto (the "Underwriters") for whom you are
acting as Representative (the "Underwriting Agreement").
This opinion is being delivered to you as Representative
pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Underwriting
Agreement.
In rendering the opinions expressed below, we have
examined the registration statement on Form S-3 (Nos. 33-
64125 and 33-64125-01) pertaining to the Preferred
Securities (the "Registration Statement"), filed under the
Securities Act of 1933, as amended (the "Act"), and the
<PAGE>
prospectus dated _______ ___, 1996 filed with the Securities
and Exchange Commission on _______ ___, 1996 (the
"Prospectus"), which pursuant to Form S-3 incorporates by
reference the Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 1994, the Quarterly
Reports on Form 10-Q of the Company for the quarters ended
March 31, 1995, June 30, 1995 and September 30, 1995 and the
Current Report on Form 8-K of the Company, dated February
15, 1995 (the "Exchange Act Documents"), each as filed under
the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
In addition, we have examined, and have relied as to
matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Preferred
Securities and the Notes, of which we have examined
specimens), and we have made such other and further
investigations as we deemed necessary to express the
opinions hereinafter set forth.
The Trust Agreement, Indenture, Guarantee Agreement and
the Underwriting Agreement are herein referred to as the
"Agreements".
We are of the opinion, relying as to matters of New
York law upon the opinion dated hereof rendered to you by
Dewey Ballantine, and as to matters of Delaware law upon the
opinion dated hereof rendered to you by Richards, Layton &
Finger, that:
1. The Company has been duly organized and is validly
existing and in good standing as a corporation under the
laws of the State of Alabama and has due corporate authority
to carry on the public utility business in which it is
engaged and to own and operate the properties used by it in
such business and to enter into and perform its obligations
under the Agreements and the Notes.
2. The execution, delivery and performance by the
Company of the Underwriting Agreement have been duly
authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered
by the Company.
3. All orders, consents, or other authorizations or
approvals of the Alabama Public Service Commission and the
Commission legally required for the issuance and delivery of
the Notes and the Guarantee and the issuance and sale of the
Preferred Securities have been obtained; such orders are
sufficient for the issuance and the delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities; the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred
Securities conform in all material respects with the terms
2
<PAGE>
of such orders; and no other order, consent or other
authorization or approval of any Alabama or United States
governmental body (other than in connection or in compliance
with the provisions of the securities or "blue sky" laws of
any jurisdiction, as to which we express no opinion) is
legally required for the issuance and delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities in accordance with the terms of the Underwriting
Agreement.
4. The Indenture has been duly authorized, executed
and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Debt
Trustee, constitutes a valid and legally binding instrument
of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the
Prospectus.
5. The Notes have been duly authorized and executed
by the Company and, when authenticated by the Debt Trustee
in the manner provided in the Indenture and delivered
against payment therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company
in accordance with their terms, subject to the
qualifications that the enforceability of the Company's
obligations under the Notes may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally
and by general principles of equity; and the Notes conform
as to legal matters in all material respects to the
description thereof in the Prospectus.
6. The Guarantee has been duly authorized, executed
and delivered by the Company and constitutes a valid and
legally binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject to
the qualifications that the enforceability of the Company's
obligations under the Guarantee may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law); and the Guarantee conforms as to legal
matters in all material respects to the description thereof
in the Prospectus.
3
<PAGE>
7. The Trust Agreement has been duly authorized,
executed and delivered by the Company, and, assuming due
authorization, execution and delivery by the Trustees, the
Trust Agreement constitutes a valid and binding obligation
of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under
the Trust Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditor's rights generally,
and by general principles of equity.
8. Each of the Indenture, the Guarantee Agreement and
the Trust Agreement has been duly qualified under the Trust
Indenture Act of 1939, as amended.
9. Neither the Company nor the Trust is and, after
giving effect to the offering and sale of the Preferred
Securities, will be an "investment company" or a company
"controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
10. The statements and legal conclusions contained in
the Prospectus under the caption "Certain Federal Income Tax
Considerations" are correct in all material respects.
11. To the best of our knowledge, all of the issued
and outstanding Common Securities of the Trust are directly
owned by the Company, free and clear of any security
interest, mortgage pledge, lien, encumbrance, claim or
equitable right.
12. The execution, delivery and performance by the
Trust of the Underwriting Agreement and the Trust Agreement;
the issuance of the Preferred Securities and the Common
Securities; the consummation of the transactions
contemplated thereby; and the compliance by the Trust with
its obligations thereunder do not and will not result in any
violation of the Trust Agreement or related Certificate of
Trust, and do not and will not conflict with, or result in,
a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation of imposition or
any lien, charge or encumbrance upon any property or assets
of the Trust under (A) any contract, indenture, mortgage,
loan agreement, note, lease or any other agreement or
instrument known to us to which the Trust is a party or by
which it may be bound or to which any of its properties may
be subject (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or
otherwise), or the Trust, (B) any existing applicable law,
rule or regulation applicable to the Trust (other than the
securities or blue sky laws of any jurisdiction, as to which
we express no opinion) or (C) any judgment, order or decree
4
<PAGE>
known to us of any government, governmental instrumentality,
or court, domestic or foreign, or any regulatory body or
administrative agency or other governmental body having
jurisdiction over the Trust or any of its properties; and
the Trust is not a party to or otherwise bound by any
agreement other than those which are exhibits (or included
in exhibits) to the Registration Statement.
13. The Common Securities have been duly authorized by
the Trust Agreement and (subject to the terms of the Trust
Agreement), when issued and delivered by the Trust to the
Company against payment therefor as described in the
Prospectus, will be validly issued and (subject to the terms
of the Trust Agreement) fully paid and non-assessable
beneficial interests in the assets of the Trust; and the
issuance of the Common Securities is not subject to
preemptive or other similar rights.
14. The Preferred Securities have been duly authorized
by the Trust Agreement and (subject to the terms of the
Trust Agreement), when delivered to and paid for the
Underwriters pursuant to the Underwriting Agreement, will be
validly issued, fully paid and nonassessable beneficial
interests in the assets of the Trust; the holders of the
Preferred Securities will (subject to the terms of the Trust
Agreement) be entitled to the same limitation of personal
liability under Delaware law as is extended to stockholders
of private corporations for profit organized under the
general corporation law of the State of Delaware; the
issuance of the Preferred Securities is not subject to
preemptive or other similar rights; and the Preferred
Securities conform as to legal matters in all material
respects to the description thereof in the Prospectus.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Registration Statement, the Prospectus or the
Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 4, 5, 6,
10 and 14 above and in the Prospectus in the second and
third paragraphs under the caption "Experts". In the course
of the preparation by the Company of the Registration
Statement, the Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and
employees of the Company, with other counsel for the Company
and with representatives of Arthur Andersen LLP. Based upon
our examination of the Registration Statement, the
Prospectus and the Exchange Act Documents, our investiga-
tions made in connection with the preparation of the
Registration Statement, the Prospectus and the Exchange Act
Documents and our participation in the conferences referred
to above, (i) we are of the opinion that the Registration
Statement, as of its effective date, and the Prospectus, as
of , complied as to form in all material
5
<PAGE>
respects with the requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that
the Exchange Act Documents, as of their respective dates of
filing with the Commission, complied as to form in all
material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express
no opinion as to the financial statements or other financial
or statistical data contained or incorporated by reference
in the Registration Statement, the Prospectus or the
Exchange Act Documents, and (ii) nothing came to our
attention which gives us reason to believe that the
Registration Statement, as of its effective date (including
the Exchange Act Documents on file with the Commission as of
such date), contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus (including
the Exchange Act Documents) contains any untrue statement
therein of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except that in each case we express no opinion
or belief with respect to the financial statements or other
financial or statistical data contained or incorporated by
reference in the Registration Statement, the Prospectus or
the Exchange Act Documents.
We are members of the State Bar of Alabama and we
do not express any opinion herein concerning any law other
than the law of the State of Alabama and the federal law of
the United States and, to the extent set forth herein, the
laws of the States of Delaware and New York.
Yours very truly,
BALCH & BINGHAM
6
<PAGE>
Schedule III-B
[Letterhead of TROUTMAN SANDERS LLP]
January __, 1996
Lehman Brothers Inc., as Representative
3 World Financial Center
New York, New York 10285
ALABAMA POWER CAPITAL TRUST I
___% TRUST PREFERRED SECURITIES
Dear Sirs:
We have acted as counsel to Alabama Power Company
(the "Company") in connection with (i) its formation of
Alabama Power Capital Trust I (the "Trust"), a Delaware
statutory business trust, pursuant to the amended and
restated trust agreement dated as of January 1, 1996 among
the Company and the trustees named therein (the "Trust
Agreement"); (ii) the Trust's issuance and sale of Preferred
Securities evidencing approximately a 97% undivided interest
therein (the "Preferred Securities"); (iii) the Trust's
issuance and sale of Common Securities evidencing
approximately a 3% undivided interest in the Trust; (iv) its
issuance and sale to the Trust of approximately $100,000,000
of its ___% Junior Subordinated Notes (the "Notes") pursuant
to a Subordinated Note Indenture dated as of January 1,
1996, by and between the Company and Chemical Bank, as
trustee, as supplemented by the First Supplemental Indenture
dated as of January 1, 1996 (collectively, the "Indenture");
and (v) its issuance of a guarantee (the "Guarantee") of the
Preferred Securities pursuant to a Preferred Securities
Guarantee Agreement dated as of January 1, 1996 (the
"Guarantee Agreement") between the Company and Chemical
Bank, as trustee. The Preferred Securities are being sold
to you today pursuant to the terms of an Underwriting
Agreement dated January __, 1996, among the Company, the
Trust and the underwriters named in Schedule I thereto (the
"Underwriters") for whom you are acting as Representative
(the "Underwriting Agreement"). This opinion is being
delivered to you as Representative pursuant to Section
5(c)(2) thereof.
All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Underwriting
Agreement.
In rendering the opinions expressed below, we have
examined the registration statement on Form S-3 (Nos. 33-
64125 and 33-64125-01) pertaining to the Preferred
Securities (the "Registration Statement") filed under the
Securities Act of 1933, as amended (the "Act"), and the
<PAGE>
prospectus dated _______ ___, 1996 filed with the Securities
and Exchange Commission on _______ ___, 1996 (the
"Prospectus"), which pursuant to Form S-3 incorporates by
reference the Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 1994, the Quarterly
Reports on Form 10-Q of the Company for the quarters ended
March 31, 1995, June 30, 1995 and September 30, 1995 and the
Current Report on Form 8-K of the Company, dated February
15, 1995 (the "Exchange Act Documents"), each as filed under
the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
In addition, we have examined, and have relied as to
matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Preferred
Securities and the Notes, of which we have examined
specimens), and we have made such other and further
investigations as we deemed necessary to express the
opinions hereinafter set forth.
The Trust Agreement, Indenture, Guarantee Agreement and
the Underwriting Agreement are herein referred to as the
"Agreements".
We are of the opinion, relying as to matters of Alabama
law upon the opinion dated hereof rendered to you by Balch &
Bingham, general counsel for the Company, as to matters of
New York law upon the opinion dated hereof rendered to you
by Dewey Ballantine and as to matters of Delaware law upon
the opinion dated hereof rendered to you by Richards, Layton
& Finger, that:
1. The Company has been duly organized and is validly
existing and in good standing as a corporation under the
laws of the State of Alabama and has due corporate authority
to carry on the public utility business in which it is
engaged and to own and operate the properties used by it in
such business and to enter into and perform its obligations
under the Agreements and the Notes.
2. The execution, delivery and performance by the
Company of the Underwriting Agreement have been duly
authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered
by the Company.
3. All orders, consents or other authorizations or
approvals of the Alabama Public Service Commission and the
Commission legally required for the issuance and delivery of
the Notes and the Guarantee and the issuance and sale of the
Preferred Securities have been obtained; such orders are
sufficient for the issuance and delivery of the Notes and
the Guarantee and the issuance and sale of the Preferred
Securities; the issuance and delivery of the Notes and the
2
<PAGE>
Guarantee and the issuance and sale of the Preferred
Securities conform in all material respects with the terms
of such orders and no other order, consent or other
authorization or approval of any Alabama or United States
governmental body (other than in connection or in compliance
with the provisions of the securities or "blue sky" laws of
any jurisdiction, as to which we express no opinion) is
legally required for the issuance and delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities in accordance with the terms of the Underwriting
Agreement.
4. The Indenture has been duly authorized, executed
and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Debt
Trustee, constitutes a valid and legally binding instrument
of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the
Prospectus.
5. The Notes have been duly authorized and executed
by the Company and, when authenticated by the Debt Trustee
in the manner provided in the Indenture and delivered
against payment therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company
in accordance with their terms, subject to the
qualifications that the enforceability of the Company's
obligations under the Notes may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally
and by general principles of equity; and the Notes conform
as to legal matters in all material respects to the
description thereof in the Prospectus.
6. The Guarantee has been duly authorized, executed
and delivered by the Company and constitutes a valid and
legally binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject to
the qualifications that the enforceability of the Company's
obligations under the Guarantee may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law); and the Guarantee conforms as to legal
3
<PAGE>
matters in all material respects to the description thereof
in the Prospectus.
7. Each of the Indenture, the Guarantee Agreement and
the Trust Agreement has been duly qualified under the Trust
Indenture Act of 1939, as amended.
8. Neither the Company nor the Trust is and, after
giving effect to the offering and sale of the Preferred
Securities, will be an "investment company" or a company
"controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
9. The Preferred Securities have been duly authorized
by the Trust Agreement and (subject to the terms of the
Trust Agreement), when delivered to and paid for the
Underwriters pursuant to the Underwriting Agreement, will be
validly issued, fully paid and nonassessable beneficial
interests in the assets of the Trust; and the Preferred
Securities conform as to legal matters in all material
respects to the description thereof in the Prospectus.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Registration Statement, the Prospectus or the
Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 4, 5, 6
and 9 above. In the course of the preparation by the
Company of the Registration Statement, the Prospectus and
the Exchange Act Documents, we participated in conferences
with certain officers and employees of the Company, with
other counsel for the Company and with representatives of
Arthur Andersen LLP. Based upon our examination of the
Registration Statement, the Prospectus and the Exchange Act
Documents, our investigations made in connection with the
preparation of the Registration Statement, the Prospectus
and the Exchange Act Documents and our participation in the
conferences referred to above, (i) we are of the opinion
that the Registration Statement, as of its effective date,
and the Prospectus, as of , complied as
to form in all material respects with the requirements of
the Act and the applicable rules and regulations of the
Commission thereunder and that the Exchange Act Documents,
as of their respective dates of filing with the Commission,
complied as to form in all material respects with the
relevant requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder, except
that in each case we express no opinion as to the financial
statements or other financial or statistical data contained
or incorporated by reference in the Registration Statement,
the Prospectus or the Exchange Act Documents, and (ii)
nothing came to our attention which gives us reason to
believe that the Registration Statement, as of its effective
date (including the Exchange Act Documents on file with the
4
<PAGE>
Commission as of such date), contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make
the statements therein not misleading, or that the
Prospectus (including the Exchange Act Documents) contains
any untrue statement therein of a material fact or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the
financial statements or other financial or statistical data
contained or incorporated by reference in the Registration
Statement, the Prospectus or the Exchange Act Documents.
We are members of the State Bar of Georgia and we
do not express any opinion herein concerning any law other
than the law of the State of Georgia and the federal law of
the United States and, to the extent set forth herein, the
laws of the States of Delaware and New York.
Yours very truly,
TROUTMAN SANDERS LLP
5
<PAGE>
Schedule IV
[Letterhead of RICHARDS, LAYTON & FINGER]
January __, 1996
Lehman Brothers Inc., as Representative
3 World Financial Center
New York, New York 10285
Re: Alabama Power Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for
Alabama Power Company, an Alabama corporation (the
"Company"), and Alabama Power Capital Trust I, a Delaware
business trust (the "Trust"), in connection with the matters
set forth herein. This opinion is being furnished to you
pursuant to Section 5(c)(3) of the Underwriting Agreement,
dated January __, 1996 (the "Underwriting Agreement"), among
the Company, the Trust, Lehman Brothers Inc. and the other
Underwriters listed in Schedule I thereto.
For purposes of giving the opinions hereinafter
set forth, our examination of documents has been limited to
the examination of originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated
November __, 1995 (the "Certificate"), as filed in the
office of the Secretary of State of the State of Delaware
(the "Secretary of State") on November __, 1995;
(b) The Trust Agreement of the Trust, dated as of
November __, 1995, among the Company and the trustees of the
Trust named therein, as amended and restated pursuant to an
Amended and Restated Trust Agreement (including Exhibits A,
C and E thereto), dated of January 1, 1996, among the
Company, the trustees of the Trust named therein (the
"Trustees"), and the holders, from time to time, of the
undivided beneficial interests in the assets of the Trust
(collectively, the "Trust Agreement");
(c) The Underwriting Agreement;
(d) The Prospectus, dated January __, 1996 (the
"Prospectus"), relating to the __% Preferred Securities of
the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities"); and
<PAGE>
Lehman Brothers Inc.
January __, 1996
Page 2
(e) A Certificate of Good Standing for the Trust,
dated ___________ __, 1996, obtained from the Secretary of
State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Trust
Agreement.
For purposes of this opinion, we have not reviewed
any documents other than the documents listed in paragraphs
(a) through (e) above. In particular, we have not reviewed
any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us.
We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no
independent factual investigation of our own but rather have
relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters
recited or assumed herein, all of which we have assumed to
be true, complete and accurate in all material respects.
With respect to all documents examined by us, we
have assumed (i) the authenticity of all documents submitted
to us as authentic originals, (ii) the conformity with the
originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i)
the Trust Agreement constitutes the entire agreement among
the parties thereto with respect to the subject matter
thereof, including with respect to the creation, operation
and termination of the Trust, and the Trust Agreement and
the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in
paragraph 1 below, the due organization or due formation, as
the case may be, and valid existence in good standing of
each party to the documents examined by us under the laws of
the jurisdiction governing its organization or formation,
(iii) the legal capacity of natural persons who are parties
to the documents examined by us, (iv) except to the extent
provided in paragraph 2 below, the power and authority of
each of the parties to the documents examined by us to
execute and deliver, and to perform its obligations under,
such documents, (v) except to the extent provided in
paragraphs 3 and 4 below, the due authorization, execution
and delivery by all parties thereto of all documents
examined by us, (vi) the receipt by each Person to whom a
Trust Security is to be issued by the Trust (collectively,
the "Trust Security Holders") of a Trust Securities
Certificate for such Trust Security and the payment for the
Trust Security acquired by it, in accordance with the Trust
Agreement and the Prospectus, and (vii) the issuance and
<PAGE>
Lehman Brothers Inc.
January __, 1996
Page 3
sale of the Trust Securities to the Trust Security Holders
in accordance with the Trust Agreement and the Prospectus.
We have not participated in the preparation of the
Prospectus and assume no responsibility for its contents.
This opinion is limited to the laws of the State
of Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion
on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our
opinions are rendered only with respect to Delaware laws and
rules, regulations and orders thereunder which are currently
in effect.
Based upon the foregoing, and upon our examination
of such questions of law and statutes of the State of
Delaware as we have considered necessary or appropriate, and
subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act, 12 Del. C. Sec 3801, et seq.
(the "Business Trust Act"), and all filings required under
the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business
trust have been made.
2. Under the Business Trust Act and the Trust
Agreement, the Trust has the power and authority to (i) own
property and conduct its business as described in the
Prospectus, (ii) execute and deliver, and to perform its
obligations under, the Underwriting Agreement, (iii) issue
and perform its obligations under the Trust Securities, and
(iv) perform its obligations under the Trust Agreement.
3. The Trust Securities have been duly
authorized by the Trust Agreement and will be duly and
validly issued and, subject to the qualifications set forth
in paragraph 6 below, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust, not subject
to any preemptive or other similar rights.
4. The Underwriting Agreement has been duly
authorized by the Trust.
5. No authorization, approval, consent or order
of any Delaware court or governmental authority or agency is
required to be obtained by the Trust solely in connection
with the issuance and sale of the Preferred Securities.
6. The Trust Security Holders, as beneficial
owners of the Trust, will be entitled to the same limitation
of personal liability extended to stockholders of private
<PAGE>
Lehman Brothers Inc.
January __, 1996
Page 4
corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
Trust Security Holders may be obligated, pursuant to the
Trust Agreement, to (i) provide indemnity and/or security in
connection with and pay taxes or governmental charges
arising from transfers or exchanges of Trust Securities
Certificates and the issuance of replacement Trust
Securities Certificates and (ii) provide security or
indemnity in connection with requests of or directions to
the Property Trustee to exercise its rights and powers under
the Trust Agreement. We also note that the Company, in its
capacity as Depositor and not in its capacity as a Holder,
has undertaken certain payment obligations as set forth in
the Trust Agreement and the Expense Agreement.
7. The Trust Agreement constitutes a valid and
binding obligation of the Company, and is enforceable
against the Company, in accordance with its terms.
8. The issuance and sale by the Trust of the
Trust Securities, the execution, delivery and performance by
the Trust of the Underwriting Agreement, the consummation by
the Trust of the transactions contemplated by the
Underwriting Agreement and the Trust Agreement and
compliance by the Trust with its obligations thereunder will
not violate (i) any of the provisions of the Certificate or
the Trust Agreement or (ii) any applicable Delaware law or
administrative regulation.
9. We have reviewed the statements in the
Prospectus under the caption "Alabama Power Capital Trust I"
and, insofar as it contains statements of Delaware law, such
statements are fairly presented.
The opinion expressed in paragraph 7 above is
subject as to enforcement, to the effect upon the Trust
Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent
conveyance and other similar laws relating to or affecting
the rights and remedies of creditors generally, and (ii)
principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and
applied in a proceeding in equity or at law).
We consent to your relying as to matters of
Delaware law upon this opinion in connection with the
Underwriting Agreement. We consent to the law firms of
Balch & Bingham, Troutman Sanders L.L.P. and Dewey
Ballantine relying as to matters of Delaware law upon this
opinion in connection with opinions to be rendered by them
pursuant to the Underwriting Agreement. Except as stated
above, without our prior written consent, this opinion may
not be furnished or quoted to, or relied upon by, any other
person for any purpose.
<PAGE>
Lehman Brothers Inc.
January __, 1996
Page 5
Very truly yours,
RICHARDS, LAYTON & FINGER
<PAGE>
Schedule V
[Letterhead of RICHARDS, LAYTON & FINGER]
January __, 1996
Lehman Brothers Inc.,
as Representative
3 World Trade Center
New York, New York 10285
Re: Alabama Power Capital Trust I
Ladies and Gentlemen:
We have acted as counsel to Chemical Bank
Delaware, a Delaware banking corporation ("CBD"), in
connection with the formation of Alabama Power Capital Trust
I, a business trust existing under the laws of the State of
Delaware (the "Trust") pursuant to the Amended and Restated
Trust Agreement, dated as of January __, 1996, by and
between CBD, not in its individual capacity but solely as
trustee (the "Trustee"), and Alabama Power Company (the
"Company"), as amended and restated pursuant to an Amended
and Restated Trust Agreement dated as of January __, 1996,
among the Company, the Trustee, the other trustees named
therein and the holders from time to time of the undivided
beneficial interests in the assets of the Trust
(collectively, the "Trust Agreement"). This opinion is
being delivered to you pursuant to Section 5(c)(4) of the
Underwriting Agreement, dated January __, 1996 (the
"Underwriting Agreement"), among Lehman Brothers Inc., the
several Underwriters named in Schedule II thereto, Alabama
Power Company and the Trust, pursuant to which the
$97,000,000 ___% Preferred Securities of the Trust will be
sold. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the
Underwriting Agreement.
We have examined an original or a copy of the
Trust Agreement. We have also examined originals or copies
of such other documents and such corporate records,
certificates and other statements of governmental officials
and corporate officers and other representatives of the
corporations or entities referred to herein as we have
deemed necessary or appropriate for the purposes of the
opinions expressed herein. Moreover, as to certain facts
material to the opinions expressed herein, we have relied
upon the representations and warranties contained in the
documents referred to in this paragraph.
Based upon the foregoing and upon an examination
of such questions of law as we have deemed necessary or
appropriate, and subject to the assumptions, exceptions and
qualifications set forth below, we advise you that, in our
opinion:
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Lehman Brothers Inc.
January __, 1996
Page 2
1. CBD is duly incorporated, validly existing in
good standing as a banking corporation under the laws of the
State of Delaware and has the power and authority to
execute, deliver and perform its obligations under the Trust
Agreement.
2. The Trust Agreement has been duly authorized,
executed and delivered by CBD and constitutes a legal, valid
and binding obligation of CBD, enforceable against CBD, in
accordance with its terms.
3. The execution and delivery of, and
performance of the terms of, the Trust Agreement by CBD,
does not conflict with or constitute a breach of, or default
under, the charter or by-laws of CBD.
4. No consent, approval or authorization of, or
registration, declaration or filing with, any court or
governmental agency or body having jurisdiction in the
premises is required under Delaware law for the execution,
delivery or performance by CBD of the Trust Agreement.
The foregoing opinions are subject to the
following exceptions, qualifications and assumptions:
(A) We are admitted to practice in the State of
Delaware and we do not hold ourselves out as being experts
on the law of any other jurisdiction. The foregoing
opinions are limited to the laws of the State of Delaware
and the federal laws of the United States of America
governing the banking and trust powers of CBD (except that
we express no opinion with respect to (i) state securities
or blue sky laws and (ii) federal securities laws,
including, without limitation, the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended,
the Trust Indenture Act of 1939, as amended, and the
Investment Company Act of 1940, as amended, and we have not
considered and express no opinion on the laws, rules and
regulations of any other jurisdiction.
(B) The foregoing opinions regarding
enforceability are subject to (i) applicable bankruptcy,
insolvency, moratorium, receivership, reorganization,
fraudulent conveyance and similar laws relating to and
affecting the rights and remedies of creditors generally,
(ii) principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii)
the effect of federal or state securities laws on the
enforceability of provisions relating to indemnification or
contribution.
(C) We have assumed the due authorization,
execution and delivery by each of the parties thereto, other
than CBD, of the Trust Agreement, and that each of such
<PAGE>
Lehman Brothers Inc.
January __, 1996
Page 3
parties has the full power, authority and legal right to
execute, delivery and perform such document.
(D) We have assumed that all signatures (other
than those of CBD) on documents examined by us are genuine,
that all documents submitted to us as originals are
authentic, and that all documents submitted to us as copies
or specimens conform with the originals, which facts we have
not independently verified.
This opinion may be relied upon by you in
connection with the matters set forth herein, and without
our prior written consent, may not be furnished or quoted
to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
<PAGE>
Schedule VI
[Letterhead of CRAVATH, SWAINE & MOORE]
January __, 1996
Lehman Brothers Inc.,
as Representative
3 World Trade Center
New York, New York 10285
ALABAMA POWER CAPITAL TRUST I
____% Trust Preferred Securities
Dear Sirs:
We have acted as counsel to Chemical Bank (the "Bank")
in connection with (a) the Subordinated Note Indenture,
dated as of ________ ______, 1995 (the "Original
Indenture"), between Alabama Power Company (the "Company")
and the Bank, as Trustee, (b) the First Supplemental
Indenture dated as of ___________ (together with the
original Indenture, herein called the "Indenture"), between
the Company and the Bank, as Trustee, (c) the Guarantee
Agreement dated as of __________ ______, 1995 (the
"Guarantee Agreement"), between the Company, as Guarantor
and the Bank, as Trustee, and (d) the Amended and Restated
Trust Agreement, dated as of _________ ______, 1995 (the
"Trust Agreement") among the Company, the Bank, as Property
Trustee, Chemical Bank Delaware, as Delaware Trustee, and
_______________ and _______________, as Administrative
Trustees.
In that connection, we have examined originals, or
copies certified or otherwise identified to our
satisfaction, of such documents, records and other
instruments as we have deemed necessary or appropriate for
the purpose of this opinion, including copies of the
Indenture, the Trust Agreement, the Guarantee Agreement and
certain resolutions adopted by the Board of Directors of the
Bank.
Based upon the foregoing, we are of the opinion
that:
i) the Bank has been duly incorporated and
is validly existing as a banking corporation in good
standing under the laws of the State of New York;
ii) the Bank has the corporate trust power
and authority to execute, deliver and perform its
duties under the Indenture, the Trust Agreement and the
Guarantee Agreement, has duly executed and delivered
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Lehman Brothers Inc.
January __, 1996
Page 2
the Indenture, the Trust Agreement and the Guarantee
Agreement, and, insofar as the laws governing the trust
powers of the Bank are concerned and assuming due
authorization, execution and delivery thereof by the
other parties thereto, each of the Indenture, the Trust
Agreement and the Guarantee Agreement constitutes a
legal, valid and binding agreement of the Bank,
enforceable against the Bank in accordance with its
terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or
other laws affecting creditors' rights generally from
time to time in effect and subject, as to
enforceability, to general principles of equity,
regardless of whether such enforceability is considered
in a proceeding in equity or at law).
iii) the execution, delivery and performance
by the Bank of the Indenture, the Trust Agreement and
the Guarantee Agreement do not conflict with or
constitute a breach of the charter or bylaws of the
Bank.
iv) no approval, authorization or other
action by, or filing with, any governmental authority
of the United States of America or the State of New
York having jurisdiction over the trust powers of the
Bank is required in connection with the execution and
delivery by the Bank of the Indenture, the Trust
Agreement or the Guarantee Agreement or the performance
by the Bank of its duties thereunder, except such as
have been obtained, taken or made.
We are admitted to practice in the State of New
York, and we express no opinion as to matters governed by
any laws other than the laws of the State of New York and
the Federal law of the United States of America. We are
furnishing this opinion to you solely for your benefit.
This opinion is not to be used, circulated, quoted or
otherwise referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE
<PAGE>
Schedule VII
[Letterhead of DEWEY BALLANTINE]
January __, 1996
Lehman Brothers Inc., as Representative
3 World Financial Center
New York, New York 10285-1600
ALABAMA POWER CAPITAL TRUST I
______% Trust Preferred Securities
Ladies and Gentlemen:
In connection with (i) the formation by Alabama
Power Company (the "Company") of Alabama Power Capital Trust
I (the "Trust"), a Delaware statutory business trust,
pursuant to the amended and restated trust agreement dated
as of January 1, 1996 among the Company and the trustees
named therein (the "Trust Agreement"); (ii) the Trust's
issuance and sale of Preferred Securities evidencing
approximately a 97% undivided interest in the Trust (the
"Preferred Securities"); (iii) the Trust's issuance and sale
of Common Securities evidencing approximately a 3% undivided
interest in the Trust; (iv) the Company's issuance and sale
to the Trust of approximately $100,000,000 of its ___%
Junior Subordinated Notes (the "Notes") pursuant to a
Subordinated Note Indenture dated as of January 1, 1996, by
and between the Company and Chemical Bank, as trustee, as
supplemented by the First Supplemental Indenture dated as of
January 1, 1996 (collectively, the "Indenture"); and (v) its
issuance of a guarantee (the "Guarantee") of the Preferred
Securities pursuant to a Preferred Securities Guarantee
Agreement dated as of January 1, 1996 (the "Guarantee
Agreement") between the Company and Chemical Bank Delaware,
as trustee, we have acted as counsel to you and the other
underwriters named in the Schedule I (the "Underwriters") of
the Underwriting Agreement dated January __, 1996, among the
Company, the Trust and the Underwriters for whom you are
acting as Representative (the "Underwriting Agreement").
This opinion is being delivered to you as Representative
pursuant to Section 5(c)(6) thereof.
All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Underwriting
Agreement.
In rendering the opinions expressed below, we have
examined the registration statement on Form S-3 (No. 33-
_______) pertaining to the Preferred Securities (the
"Registration Statement"), filed under the Securities Act of
1933, as amended (the "Act"), and the prospectus dated
_______ ___, 1995 filed with the Securities and Exchange
<PAGE>
Lehman Brothers Inc.
January __, 1996
Page 2
Commission on _______ ___, 1995 (the "Prospectus"), which
pursuant to Form S-3 incorporates by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended
December 31, 1994, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended March 31, 1995, June 30, 1995
and September 30, 1995 and the Current Report on Form 8-K of
the Company, dated February 15, 1995 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to
matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Preferred
Securities and the Notes, of which we have examined
specimens), and we have made such other and further
investigations as we deemed necessary to express the
opinions hereinafter set forth.
The Trust Agreement, Indenture, Guarantee Agreement and
the Underwriting Agreement are herein referred to as the
"Agreements".
We are of the opinion, relying as aforesaid and as
to all matters covered hereby which are governed by or
dependent upon the laws of the State of Alabama upon the
opinion of Balch & Bingham and which are governed by or
dependent upon the laws of State of Georgia upon the opinion
of Troutman Sanders LLP, and as to all matters covered
hereby which are governed by or dependent upon the laws of
the State of Delaware upon the opinion of Richards, Layton &
Finger, that:
1. The Company has been duly organized and is
validly existing and in good standing as a corporation under
the laws of the State of Alabama and has due corporate
authority to carry on the public utility business in which
it is engaged and to own and operate the properties used by
it in such business and to enter into and perform its
obligations under the Agreements and the Notes.
2. The execution, delivery and performance by
the Company of the Underwriting Agreement have been duly
authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered
by the Company.
3. All orders, consents, or other authorizations
or approvals of the Alabama Public Service Commission and
the Commission legally required for the issuance and
delivery of the Notes and the Guarantee and the issuance and
sale of the Preferred Securities have been obtained; such
orders are sufficient for the issuance and delivery of the
Notes and the Guarantee and the issuance and sale of the
Preferred Securities; the issuance and delivery of the Notes
<PAGE>
Lehman Brothers Inc.
January __, 1996
Page 3
and the Guarantee and the issuance and sale of the Preferred
Securities conform in all material respects with the terms
of such orders; and no other order, consent or other
authorization or approval of any Alabama or United States
governmental body (other than in connection or in compliance
with the provisions of the securities or "blue sky" laws of
any jurisdiction, as to which we express no opinion) is
legally required for the issuance and delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities in accordance with the terms of the Underwriting
Agreement.
4. The Indenture has been duly authorized,
executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Debt
Trustee, constitutes a valid and legally binding instrument
of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the
Prospectus.
5. The Notes have been duly authorized and
executed by the Company and, when authenticated by the Debt
Trustee in the manner provided in the Indenture and
delivered against payment therefor, will constitute valid
and binding obligations of the Company enforceable against
the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's
obligations under the Notes may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally
and by general principles of equity; the Notes conform as to
legal matters in all material respects to the description
thereof in the Prospectus.
6. The Guarantee has been duly authorized,
executed and delivered by the Company and constitutes a
valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its
terms, subject to the qualifications that the enforceability
of the Company's obligations under the Guarantee may be
limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally or general principles of equity
(regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Guarantee
<PAGE>
Lehman Brothers Inc.
January __, 1996
Page 4
conforms as to legal matters in all material respects to the
description thereof in the Prospectus.
7. Each of the Indenture, the Guarantee
Agreement and the Trust Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended.
8. The Preferred Securities have been duly
authorized by the Trust Agreement and (subject to the terms
of the Trust Agreement), when delivered to and paid for the
Underwriters pursuant to the Underwriting Agreement, will be
validly issued, fully paid and nonassessable beneficial
interests in the assets of the Trust; and the Preferred
Securities conform as to legal matters in all material
respects to the description thereof in the Prospectus.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Registration Statement, the Prospectus or the
Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 4, 5, 6
and 8 above. In the course of the preparation by the
Company of the Registration Statement, the Prospectus and
the Exchange Act Documents, we participated in conferences
with certain officers and employees of the Company, with
representatives of Arthur Andersen LLP and with counsel to
the Company. Based upon our examination of the Registration
Statement, the Prospectus and the Exchange Act Documents,
our investigations made in connection with the preparation
of the Registration Statement and the Prospectus and our
participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of
its effective date, and the Prospectus, as of ___________,
complied as to form in all material respects with the
requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the
Exchange Act Documents, as of their respective dates of
filing with the Commission, complied as to form in all
material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express
no opinion as to the financial statements or other financial
or statistical data contained or incorporated by reference
in the Registration Statement, the Prospectus or the
Exchange Act Documents, and (ii) nothing came to our
attention which gives us reason to believe that the
Registration Statement, as of its effective date (including
the Exchange Act Documents on file with the Commission as of
such date, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein
not misleading, or that the Prospectus (including the
Exchange Act Documents) contains any untrue statement of a
material fact or omits to state a material fact necessary in
<PAGE>
Lehman Brothers Inc.
January __, 1996
Page 5
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that in each case we express no opinion or belief
with respect to the financial statements or other financial
or statistical data contained or incorporated by reference
in the Registration Statement, the Prospectus or the
Exchange Act Documents.
We are members of the State Bar of New York and we
do not express any opinion herein concerning any law other
than the law of the State of New York and the federal law of
the United States, and to the extent set forth herein, the
laws of the States of Delaware, Georgia and Alabama.
This opinion is rendered solely to you in
connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by
or furnished to any other person without our prior written
consent except that Balch & Bingham and Troutman Sanders LLP
may rely on this opinion in giving their opinions pursuant
to Section 5(c) of the Underwriting Agreement, insofar as
such opinions relate to matters of New York law.
Very truly yours,
DEWEY BALLANTINE
<PAGE>
Exhibit C
TRUST AGREEMENT
THIS TRUST AGREEMENT is made as of November 8, 1995, by
and between Alabama Power Company, an Alabama corporation, as
Depositor (the "Depositor"), and Chemical Bank Delaware, duly
organized and existing in the State of Delaware, as Trustee (the
"Trustee"). The Depositor and the Trustee hereby agree as
follows:
1. The trust created hereby shall be known as
"Alabama Power Capital Trust I", in which name the Trustee, or
the Depositor to the extent provided herein, may conduct the
business of the Trust, make and execute contracts, and sue and be
sued.
2. The Depositor hereby assigns, transfers, conveys
and sets over to the Trustee the sum of $10. The Trustee hereby
acknowledges receipt of such amount in trust from the Depositor,
which amount shall constitute the initial trust estate. The
Trustee hereby declares that it will hold the trust estate in
trust for the Depositor. It is the intention of the parties
hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Dec. C.
Sec 3801, et seq. (the "Business Trust Act"), and that this
document constitute the governing instrument of the Trust. The
Trustee is hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State
substantially in the form attached hereto or in such other form
as the Trustee may approve.
3. The Depositor and the Trustee will enter into an
amended and restated Trust Agreement satisfactory to each such
party and substantially in the form included as Exhibit 4(d) to
the Registration Statement on Form S-3 (the "1933 Act
Registration Statement") referred to below, or in such other form
as the Trustee and the Depositor may approve, to provide for the
contemplated operation of the Trust created hereby and the
issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Trustee shall not have
any duty or obligation hereunder or with respect of the trust
estate, except as otherwise required by applicable law or as may
be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or
otherwise. However, notwithstanding the foregoing, the Trustee
may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. The Depositor and the Trustee hereby authorize and
direct the Depositor, as the sponsor of the Trust, (i) to file
with the Securities and Exchange Commission (the "Commission")
<PAGE>
and execute, in the case of the 1933 Act Registration Statement
and 1934 Act Registration Statement (as herein defined) on behalf
of the Trust, (a) the 1933 Act Registration Statement including
pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act
of 1933, as amended, of the Preferred Securities of the Trust,
(b) any preliminary prospectus or prospectus relating to the
Preferred Securities required to be filed pursuant to Rule 424
under the 1933 Act, and (c) a Registration Statement on Form 8-A
(the "1934 Act Registration Statement") (including all pre-
effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under
Section 12(b) of the Securities Exchange Act of 1934, as amended;
(ii) to file with the New York Stock Exchange and execute on
behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on the New York Stock Exchange;
(iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers
and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of
such jurisdictions as the Depositor, on behalf of the Trust, may
deem necessary or desirable; and (iv) to execute, deliver and
perfect the Underwriting Agreement on behalf of the Trust. The
Trustee further hereby ratifies and approves all actions having
previously been taken with respect to the foregoing. In the
event that any filing referred to in clauses (i)-(iii) above is
required by the rules and regulations of the Commission, the New
York Stock Exchange or state securities or Blue Sky laws, to be
executed on behalf of the Trust by the Trustee, Chemical Bank
Delaware in its capacity as Trustee of the Trust, is hereby
authorized and directed to join in any such filing and to execute
on behalf of the Trust any and all of the foregoing, it being
understood that Chemical Bank Delaware in its capacity as Trustee
of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required
by the rules and regulations of the Commission, the New York
Stock Exchange or state securities or Blue Sky laws.
5. This Trust Agreement may be executed in one or
more counterparts.
6. The number of Trustees initially shall be one (1)
and thereafter the number of Trustees shall be such number as
shall be fixed from time to time by a written instrument signed
by the Depositor which may increase or decrease the number of
Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in
-2-
<PAGE>
the State of Delaware. Subject to the foregoing, the Depositor
is entitled to appoint or remove without cause any Trustee at any
time. Any Trustee may resign upon thirty days prior notice to
the Depositor.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written.
ALABAMA POWER COMPANY,
as Depositor
By:
Name: Art P. Beattie
Title: Vice President, Secretary
and Treasurer
CHEMICAL BANK DELAWARE,
as Trustee
By:
Name:
Title: Senior Trust Officer
-4-
<PAGE>
ATTACHMENT
Form of Certificate of Trust
-5-
<PAGE>
Exhibit D
ALABAMA POWER CAPITAL TRUST I
AMENDED AND RESTATED
TRUST AGREEMENT
among
ALABAMA POWER COMPANY, as Depositor,
CHEMICAL BANK, as Property Trustee
CHEMICAL BANK DELAWARE, as Delaware Trustee
and
WILLIAM E. ZALES, JR. and J. RANDY DERIEUX,
as Administrative Trustees
Dated as of January 1, 1996
<PAGE>
ALABAMA POWER CAPITAL TRUST I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . 8.07
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 8.07
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 8.08
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
Section 313(a) . . . . . . . . . . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . 8.14(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 8.14(a)
(d) . . . . . . . . . . . . . . . . . . . 8.14(a), 8.14(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . 8.15
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . 8.15, 8.16
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 8.16
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . 8.16
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 8.16
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . 8.01
(b) . . . . . . . . . . . . . . . . . . . . . 8.02, 8.14(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . 8.01, 8.03
(e) . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . 8.19
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . 8.19
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 317(a)(1) . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . 10.10
Note: This Cross-Reference Table does not constitute part
of the Trust Agreement and shall not affect the interpretation of
any of its terms and provisions.
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Defined Terms . . . . . . . . . . . 2
Section 1.01 Definitions . . . . . . . . . . . . . . . . . 2
ARTICLE II
Establishment of the Trust . . . . . . . 10
Section 2.01 Name . . . . . . . . . . . . . . . . . . . . . 10
Section 2.02 Offices of the Trustees; Principal Place of
Business . . . . . . . . . . . . . . . . . . . 11
Section 2.03 Initial Contribution of Trust Property;
Organizational Expenses . . . . . . . . . . . 11
Section 2.04 Issuance of the Preferred Securities . . . . . 11
Section 2.05 Subscription and Purchase of Junior
Subordinated Notes; Issuance of the Common
Securities . . . . . . . . . . . . . . . . . . 11
Section 2.06 Declaration of Trust . . . . . . . . . . . . . 12
Section 2.07 Authorization to Enter into Certain
Transactions . . . . . . . . . . . . . . . . . 12
Section 2.08 Assets of Trust . . . . . . . . . . . . . . . 17
Section 2.09 Title to Trust Property . . . . . . . . . . . 17
Section 2.10 Mergers and Consolidations of the Trust . . . 18
ARTICLE III
Payment Account . . . . . . . . . . 19
Section 3.01 Payment Account . . . . . . . . . . . . . . . 19
ARTICLE IV
Distributions; Redemption . . . . . . . . 19
Section 4.01 Distributions . . . . . . . . . . . . . . . . 19
Section 4.02 Redemption . . . . . . . . . . . . . . . . . . 20
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Section 4.03 Subordination of Common Securities . . . . . . 23
Section 4.04 Payment Procedures . . . . . . . . . . . . . . 23
Section 4.05 Tax Returns and Reports . . . . . . . . . . . 23
ARTICLE V
Trust Securities Certificates . . . . . . . 24
Section 5.01 Initial Ownership . . . . . . . . . . . . . . 24
Section 5.02 The Trust Securities Certificates . . . . . . 24
Section 5.03 Authentication of Trust Securities
Certificates . . . . . . . . . . . . . . . . . 24
Section 5.04 Registration of Transfer and Exchange of
Preferred Securities Certificates . . . . . . 25
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates . . . . . . . . . . . 25
Section 5.06 Persons Deemed Securityholders . . . . . . . . 26
Section 5.07 Access to List of Securityholders' Names and
Addresses . . . . . . . . . . . . . . . . . . 26
Section 5.08 Maintenance of Office or Agency . . . . . . . 27
Section 5.09 Appointment of Paying Agent . . . . . . . . . 27
Section 5.10 Ownership of Common Securities by Depositor . 28
Section 5.11 Book-Entry Preferred Securities Certificates;
Common Securities Certificate . . . . . . . . 28
Section 5.12 Notices to Clearing Agency . . . . . . . . . . 29
Section 5.13 Definitive Preferred Securities Certificates . 29
Section 5.14 Rights of Securityholders . . . . . . . . . . 30
ARTICLE VI
Acts of Securityholders; Meetings; Voting . . . . 30
Section 6.01 Limitations on Voting Rights . . . . . . . . . 30
Section 6.02 Notice of Meetings . . . . . . . . . . . . . . 31
Section 6.03 Meetings of Preferred Securityholders . . . . 32
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Section 6.04 Voting Rights . . . . . . . . . . . . . . . . 32
Section 6.05 Proxies, etc. . . . . . . . . . . . . . . . . 32
Section 6.06 Securityholder Action by Written Consent . . . 33
Section 6.07 Record Date for Voting and Other Purposes . . 33
Section 6.08 Acts of Securityholders . . . . . . . . . . . 33
Section 6.09 Inspection of Records . . . . . . . . . . . . 34
ARTICLE VII
Representations and Warranties of the Trustees . . 34
Section 7.01 Representations and Warranties of the
Trustee . . . . . . . . . . . . . . . . . . . 34
ARTICLE VIII
The Trustees . . . . . . . . . . . 36
Section 8.01 Certain Duties and Responsibilities . . . . . 36
Section 8.02 Notice of Defaults . . . . . . . . . . . . . . 36
Section 8.03 Certain Rights of Property Trustee . . . . . . 36
Section 8.04 Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . 38
Section 8.05 May Hold Securities . . . . . . . . . . . . . 38
Section 8.06 Compensation; Fees; Indemnity . . . . . . . . 38
Section 8.07 Trustees Required; Eligibility . . . . . . . . 39
Section 8.08 Conflicting Interests . . . . . . . . . . . . 39
Section 8.09 Co-Trustees and Separate Trustee . . . . . . . 40
Section 8.10 Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . 41
Section 8.11 Acceptance of Appointment by Successor . . . . 42
Section 8.12 Merger, Conversion, Consolidation or
Succession
to Business . . . . . . . . . . . . . . . . . 43
Section 8.13 Preferential Collection of Claims Against
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Depositor or Trust . . . . . . . . . . . . . . 43
Section 8.14 Reports by Property Trustee . . . . . . . . . 44
Section 8.15 Reports to the Property Trustee . . . . . . . 44
Section 8.16 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . 44
Section 8.17 Number of Trustees . . . . . . . . . . . . . . 45
Section 8.18 Delegation of Power . . . . . . . . . . . . . 45
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders . . . . . . . . . . . . . . . 45
ARTICLE IX
Termination and Liquidation . . . . . . . 46
Section 9.01 Termination Upon Expiration Date . . . . . . . 46
Section 9.02 Early Termination . . . . . . . . . . . . . . 46
Section 9.03 Termination . . . . . . . . . . . . . . . . . 47
Section 9.04 Liquidation . . . . . . . . . . . . . . . . . 47
Section 9.05 Bankruptcy . . . . . . . . . . . . . . . . . . 48
ARTICLE X
Miscellaneous Provisions . . . . . . . . 49
Section 10.01 Guarantee by the Depositor . . . . . . . . . . 49
Section 10.02 Limitation of Rights of Securityholders . . . 49
Section 10.03 Amendment . . . . . . . . . . . . . . . . . . 49
Section 10.04 Separability . . . . . . . . . . . . . . . . . 51
Section 10.05 Governing Law . . . . . . . . . . . . . . . . 51
Section 10.06 Successors . . . . . . . . . . . . . . . . . . 51
Section 10.07 Headings . . . . . . . . . . . . . . . . . . . 51
Section 10.08 Notice and Demand . . . . . . . . . . . . . . 51
Section 10.09 Agreement Not to Petition . . . . . . . . . . 52
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Section 10.10 Conflict with Trust Indenture Act . . . . . . 52
EXHIBIT A Restated Certificate of Trust
EXHIBIT B Form of Certificate Depository Agreement
EXHIBIT C Form of Common Securities Certificate
EXHIBIT D Form of Expense Agreement
EXHIBIT E Form of Preferred Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of
January 1, 1996, by and among (i) Alabama Power Company, an
Alabama corporation (the "Depositor" or the "Company"), (ii)
Chemical Bank, a banking corporation duly organized and existing
under the laws of New York, as trustee (the "Property Trustee"
and, in its separate corporate capacity and not in its capacity
as Trustee, the "Bank"), (iii) Chemical Bank Delaware, a banking
corporation duly organized under the laws of Delaware, as
Delaware trustee (the "Delaware Trustee" and, in its separate
corporate capacity and not in its capacity as Delaware Trustee,
the "Delaware Bank"), and (iv) William E. Zales, Jr., an
individual, and J. Randy DeRieux, an individual, as administra-
tive trustees (each an "Administrative Trustee" and together the
"Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees referred to collectively
as the "Trustees") and (v) the several Holders, as hereinafter
defined.
WITNESSETH:
WHEREAS, the Depositor and the Delaware Trustee have
heretofore duly declared and established a business trust
pursuant to the Delaware Business Trust Act by the entering into
of that certain Trust Agreement, dated as of November 8, 1995
(the "Original Trust Agreement"), and by the execution and filing
by the Delaware Trustee with the Secretary of State of the State
of Delaware of the Certificate of Trust, dated November 8, 1995;
and
WHEREAS, the parties hereto desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the addition of the Bank,
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 party and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
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ARTICLE I
Defined Terms
Section 1.01 Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities
of a given Liquidation Amount and/or a given period, an amount
equal to the Additional Interest (as defined in clause (ii) of
the definition of "Additional Interest" in the Subordinated
Indenture) paid by the Depositor on a Like Amount of Junior
Subordinated Notes for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative
Trustees of the Trust formed hereunder and not in their
individual capacities, or such trustee's successor(s) in interest
in such capacity, or any successor "Administrative Trustee"
appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
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"Bank" has the meaning specified in the preamble to this
Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt
or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under federal
bankruptcy law or any other applicable federal or state law,
or appointing a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of such Person or of
any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of a decree or order unstayed and in effect for
a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or the consent by it
to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under federal
bankruptcy law or any other applicable federal or state law,
or the consent by it to the filing of such petition or to
the appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such Person or
of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of action by
such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section
10.09.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have
been duly adopted by the Depositor's Board of Directors or a duly
authorized committee thereof and to be in full force and effect
on the date of such certification, and delivered to the Trustees.
"Book-Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates,
ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (i) a Saturday or a
Sunday, (ii) a day on which banks in Wilmington, Delaware or New
York, New York are authorized or obligated by law or executive
order to remain closed or (iii) a day on which the Corporate
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Trust Office or the Indenture Trustee's principal corporate trust
office is closed for business.
"Certificate Depository Agreement" means the agreement among
the Trust, the Depositor and The Depository Trust Company, as the
initial Clearing Agency, dated as of the Issue Date, relating to
the Preferred Securities Certificates, substantially in the form
attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository Trust Company
will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to
time a Clearing Agency effects book-entry transfers and pledges
of securities deposited with the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of
this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of a Common Security or Securities,
substantially in the form attached as Exhibit C.
"Company" means Alabama Power Company.
"Corporate Trust Office" means the office of the Property
Trustee located in New York, New York at which its corporate
trust business shall be principally administered.
"Definitive Preferred Securities Certificates" means either
or both (as the context requires) of (i) Preferred Securities
Certificates issued in certificated, fully registered form as
provided in Section 5.11(a) and (ii) Preferred Securities
Certificates issued in certificated, fully registered form as
provided in Section 5.13.
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"Delaware Bank" has the meaning specified in the preamble to
this Trust Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12
of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the commercial bank or trust
company or any other person identified as the "Delaware Trustee"
and has the meaning specified in the preamble to this Trust
Agreement solely in its capacity as Delaware Trustee of the Trust
formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any
successor Delaware Trustee appointed as herein provided.
"Depositor" means Alabama Power Company, in its capacity as
"Depositor" under this Trust Agreement.
"Distribution Date" has the meaning specified in Section
4.01(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of an Indenture Event of Default;
or
(ii) default by the Property Trustee in the payment of
any Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days; or
(iii) default by the Property Trustee in the payment of
any Redemption Price of any Trust Security when it becomes
due and payable; or
(iv) default in the performance, or breach, of any
covenant or warranty of the Trustees in this Trust Agreement
(other than a covenant or warranty a default in whose
performance or breach is dealt with in clause (ii) or (iii)
above) and continuation of such default or breach for a
period of 60 days after there has been given, by registered
or certified mail, to the Trustees by the Holders of at
least 10% in Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or
5
<PAGE>
breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect
to the Trustees.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Company and the Trust, substantially in
the form attached as Exhibit D, as amended from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Company and Chemical Bank, as Guarantee Trustee,
contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred
Securities, as amended from time to time.
"Indenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Indenture Redemption Date" means "Redemption Date," as
defined in the Subordinated Indenture.
"Indenture Trustee" means the trustee under the Subordinated
Indenture.
"Issue Date" means the date of the delivery of the Trust
Securities.
"Junior Subordinated Notes" means the $100,000,000 aggregate
principal amount of the Depositor's Series A 7.375% Junior
Subordinated Notes, due March 31, 2026, issued pursuant to the
Subordinated Indenture.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a
Liquidation Amount equal to the principal amount of Junior
Subordinated Notes to be contemporaneously redeemed in accordance
with the Subordinated Indenture and the proceeds of which will be
used to pay the Redemption Price of such Trust Securities and
(ii) Junior Subordinated Notes having a principal amount equal to
the Liquidation Amount of the Trust Securities of the Holder to
whom such Junior Subordinated Notes are distributed.
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"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Junior
Subordinated Notes are to be distributed to Holders of Trust
Securities in connection with a dissolution and liquidation of
the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in
Section 9.05.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. An Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as is necessary, in such
officer's opinion, to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Trustees or the Depositor, but
not an employee of the Trust or the Trustees, and who shall be
reasonably acceptable to the Property Trustee. Any Opinion of
Counsel pertaining to federal income tax matters may rely on
published rulings of the Internal Revenue Service.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
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Securities theretofore authenticated and delivered under this
Trust Agreement, except:
(i) Preferred Securities theretofore cancelled by
the Administrative Trustees or delivered to the
Administrative Trustees for cancellation;
(ii) Preferred Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred Securities;
provided that if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(iii) Preferred Securities which have been paid
pursuant to Section 5.05 or in exchange for or in lieu of
which other Preferred Securities have been authenticated and
delivered pursuant to this Trust Agreement;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, the Holder of the Common
Securities, any Trustee or any Affiliate of the Depositor or any
Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Preferred Securities which such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at
any time when all of the outstanding Preferred Securities are
owned by the Depositor, the Holder of the Common Securities, one
or more Trustees and/or any such Affiliate. Preferred Securities
so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with
respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the
records of the Clearing Agency or, if a Clearing Agency
Participant is not the Owner, then as reflected in the records of
a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such
Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be the
Property Trustee.
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"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee for
the benefit of the Securityholders in which all amounts paid in
respect of the Junior Subordinated Notes will be held and from
which the Trustee shall make payments to the Securityholders in
accordance with Section 4.01.
"Person" means an individual, corporation, partnership,
joint venture, trust, limited liability company or corporation,
unincorporated organization or government or any agency or
political subdivision thereof.
"Preferred Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount
of $25 and having rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of a Preferred Security or Securities,
substantially in the form attached as Exhibit E.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to
this Trust Agreement solely in its capacity as Property Trustee
of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such
capacity, or any successor "Property Trustee" as herein provided.
"Redemption Date" means, with respect to any Trust Security
to be redeemed, the date fixed for such redemption by or pursuant
to this Trust Agreement; provided that each Indenture Redemption
Date shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such
Trust Security, plus accrued and unpaid Distributions to such
date.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities
Register; any such Person shall be deemed to be a beneficial
owner within the meaning of the Delaware Business Trust Act.
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"Subordinated Indenture" means the Indenture, dated as of
January 1, 1996, between the Depositor and the Indenture Trustee,
as supplemented by the Supplemental Indenture.
"Supplemental Indenture" means the First Supplemental
Indenture, dated as of January 1, 1996, by and between the
Depositor and the Indenture Trustee.
"Trust" means the Delaware business trust continued hereby
and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any modification, amendment or
supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trustees" means the Persons identified as "Trustees" in the
preamble to this Trust Agreement solely in their capacities as
Trustees of the Trust formed hereunder and not in their
individual capacities, or their successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trust Property" means (i) the Junior Subordinated Notes,
(ii) any cash on deposit in, or owing to, the Payment Account,
and (iii) all proceeds and rights in respect of the foregoing and
any other property and assets for the time being held or deemed
to be held by the Trustees pursuant to this Trust Agreement.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or
the Preferred Securities.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of January 17, 1996, among the Trust, the Depositor and
the underwriters named therein.
ARTICLE II
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Establishment of the Trust
Section 2.01 Name. The Trust continued hereby shall be
known as "Alabama Power Capital Trust I", in which name the
Trustees may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and 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 Chemical Bank,
450 West 33rd Street, New York, New York 10001, or at such other
address in New York as the Property Trustee may designate by
written notice to the Securityholders and the Depositor. The
principal place of business of the Delaware Trustee is 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. On
January 17, 1996, the Depositor and the Trust executed and
delivered the Underwriting Agreement. Contemporaneously with the
execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall execute
and deliver to the underwriters named therein Preferred
Securities Certificates, registered in the name of the nominee of
the initial Clearing Agency, in an aggregate amount of 3,880,000
Preferred Securities having an aggregate Liquidation Amount of
$97,000,000, against receipt of the aggregate purchase price of
such Preferred Securities of $97,000,000, which amount the
Administrative Trustees shall promptly deliver to the Property
Trustee.
Section 2.05 Subscription and Purchase of Junior
Subordinated Notes; Issuance of the Common Securities.
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Contemporaneously with the execution and delivery of this Trust
Agreement, the Administrative Trustees, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Junior
Subordinated Notes, registered in the name of the Property
Trustee, on behalf of the Trust and the Holders, and having an
aggregate principal amount equal to $100,000,000, and, in
satisfaction of the purchase price for such Junior Subordinated
Notes, the Administrative Trustees, on behalf of the Trust, shall
(i) execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an
aggregate amount of 120,000 Common Securities having an aggregate
Liquidation Amount of $3,000,000, and (ii) cause the Property
Trustee to deliver to the Depositor the sum of $100,000,000.
Section 2.06 Declaration of Trust. The exclusive purposes
and functions of the Trust are (i) to issue and sell the Trust
Securities and use the proceeds from such sale to acquire the
Junior Subordinated Notes, and (ii) to engage in those activities
necessary, incidental, appropriate or convenient thereto. The
Depositor hereby appoints each of the Bank, the Delaware Bank,
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 subject to the conditions set forth
herein for the benefit of the Trust and the Securityholders. The
Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of
the Property Trustee or the Administrative Trustees set forth
herein, except that the Delaware Trustee is hereby authorized and
directed, together with the Property Trustee and Administrative
Trustees, to execute and cause the Restated Certificate of Trust
of the Trust (in the form of Exhibit A attached) to be filed with
the Office of the Secretary of State of Delaware. The Delaware
Trustee shall be one of the Trustees for the sole and limited
purpose of fulfilling the requirements of the Delaware Business
Trust Act.
Section 2.07 Authorization to Enter into Certain
Transactions. The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (C) of this
Section, and in accordance with the following provisions (A) and
(B), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Trust Agreement,
and, to perform all acts in furtherance thereof, including
without limitation, the following:
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A. As among the Trustees, the Administrative Trustees
shall have the exclusive power, duty and authority to act on
behalf of the Trust with respect to the following matters:
(i) to acquire the Junior Subordinated Notes with
the proceeds of the sale of the Trust Securities; provided,
however, the Administrative Trustees shall cause legal title
to all of the Junior Subordinated Notes to be vested in, and
the Junior Subordinated Notes to be held of record in the
name of, the Property Trustee for the benefit of the Trust
and Holders of the Trust Securities;
(ii) to give the Depositor and the Property
Trustee prompt written notice of the occurrence of any
Special Event (as defined in the Supplemental Indenture) and
to take any ministerial actions in connection therewith;
provided, that the Administrative Trustees shall consult
with the Depositor and the Property Trustee before taking or
refraining to take any ministerial action in relation to a
Special Event;
(iii) to establish a record date with respect to
all actions to be taken hereunder that require a record date
be established, including for the purposes of sec 316(c) of
the Trust Indenture Act and with respect to Distributions,
voting rights, redemptions, and exchanges, and to issue
relevant notices to Holders of the Trust Securities as to
such actions and applicable record dates;
(iv) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust
claims or demands of or against the Trust ("Legal Action"),
unless pursuant to Section 2.07(B)(v), the Property Trustee
has the power to bring such Legal Action;
(v) to employ or otherwise engage employees and
agents (who may be designated as officers with titles) and
managers, contractors, advisors, and consultants and pay
reasonable compensation for such services;
(vi) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(vii) to give the certificate to the Property
Trustee required by sec 314(a)(4) of the Trust Indenture Act,
which certificate may be executed by any Administrative
Trustee;
(viii) to take all actions and perform such duties
as may be required of the Administrative Trustees pursuant
to the terms of this Agreement;
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(ix) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges
as a statutory business trust under the laws of the State of
Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of
the Holders of the Trust Securities or to enable the Trust
to effect the purposes for which the Trust has been created;
(x) to take all action necessary to cause all
applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly
prepared and filed by the Administrative Trustees, on behalf
of the Trust;
(xi) to issue and sell the Trust Securities;
(xii) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the
Expense Agreement and the Certificate Depository Agreement
and such other agreements as may be necessary or desirable
in connection with the consummation hereof;
(xiii) to assist in the registration of the
Preferred Securities under the Securities Act of 1933, as
amended, and under state securities or blue sky laws, and
the qualification of the Trust Agreement as a trust
indenture under the Trust Indenture Act;
(xiv) to assist in the listing of the Preferred
Securities upon such securities exchange or exchanges as
shall be determined by the Depositor and the registration of
the Preferred Securities under the Securities Exchange Act
of 1934, as amended, and the preparation and filing of all
periodic and other reports and other documents pursuant to
the foregoing;
(xv) to send notices (other than notices of
default) and other information regarding the Trust
Securities and the Junior Subordinated Notes to the
Securityholders in accordance with this Trust Agreement;
(xvi) to appoint a Paying Agent, authenticating
agent and Securities Registrar in accordance with this Trust
Agreement;
(xvii) to register transfers of the Trust Securities
in accordance with this Trust Agreement;
(xviii) to assist in, to the extent provided in this
Trust Agreement, the winding up of the affairs of and
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termination of the Trust and the preparation, execution and
filing of the certificate of cancellation with the Secretary
of State of the State of Delaware; and
(xix) to take any action incidental to the
foregoing as the Administrative Trustees may from time to
time determine is necessary, appropriate, convenient or
advisable to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder).
B. As among the Trustees, the Property Trustee shall have
the exclusive power, duty and authority to act on behalf of the
Trust with respect to the following matters:
(i) engage in such ministerial activities as
shall be necessary or appropriate to effect promptly the
redemption of the Trust Securities to the extent the Junior
Subordinated Notes are redeemed or mature;
(ii) upon notice of distribution issued by the
Administrative Trustees in accordance with the terms of this
Trust Agreement, engage in such ministerial activities as
shall be necessary or appropriate to effect promptly the
distribution pursuant to terms of this Trust Agreement of
Junior Subordinated Notes to Holders of Trust Securities
upon the occurrence of a Special Event (as defined in the
Supplemental Indenture);
(iii) subject to the terms hereof, exercise all of
the rights, powers and privileges of a holder of the Junior
Subordinated Notes under the Subordinated Indenture and, if
an Event of Default occurs and is continuing, shall enforce
for the benefit of, and subject to the rights of, the
Holders of the Trust Securities, its rights as holder of the
Junior Subordinated Notes under the Subordinated Indenture;
(iv) take all actions and perform such duties as
may be specifically required of the Property Trustee
pursuant to the terms of this Trust Agreement;
(v) take any Legal Action which arises out of or
in connection with an Event of Default or the Property
Trustee's duties and obligations under this Trust Agreement,
the Delaware Business Trust Act or the Trust Indenture Act;
(vi) the establishment and maintenance of the
Payment Account;
(vii) the receipt of and holding of legal title to
the Junior Subordinated Notes as described herein;
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(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
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to assist the Trust with respect to, or effect on behalf of the
Trust, the following (and any actions taken by the Depositor in
furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 under the
Securities Act of 1933, as amended, in relation to the
Preferred Securities, including any amendments thereto;
(ii) to determine the states in which to take
appropriate action to qualify or register for sale all or
part of the Preferred Securities and to do any and all such
acts, other than actions which must be taken by or on behalf
of the Trust, and advise the Trustees of actions they must
take on behalf of the Trust, and prepare for execution and
filing any documents to be executed and filed by the Trust
or on behalf of the Trust, as the Depositor deems necessary
or advisable in order to comply with the applicable laws of
any such States;
(iii) to prepare for filing by the Trust an
application to the New York Stock Exchange or any other
national stock exchange or the NASDAQ National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to
the registration of the Preferred Securities under Section
12(b) of the Exchange Act, including any amendments thereto;
(v) to negotiate the terms of the Underwriting
Agreement providing for the sale of the Preferred Securities
and to execute, deliver and perform the Underwriting
Agreement on behalf of the Trust; and
(vi) any other actions necessary, incidental,
appropriate or convenient to carry out any of the foregoing
activities.
E. Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct
the affairs of the Trust and to operate the Trust so that the
Trust will not be deemed to be an "investment company" required
to be registered under the Investment Company Act of 1940, as
amended, or taxed as other than a grantor trust for United States
federal income tax purposes and so that the Junior Subordinated
Notes will be treated as indebtedness of the Depositor for United
States federal income tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate
of Trust or this Trust Agreement, that each of the Depositor and
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the Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such action
does not adversely affect the interests of the Holders of the
Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust
shall consist of the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders and the Trust in accordance with this Trust
Agreement. The right, title and interest of the Property Trustee
to the Junior Subordinated Notes shall vest automatically in each
Person who may thereafter be appointed as Property Trustee in
accordance with the terms hereof. Such vesting and cessation of
title shall be effective whether or not conveyancing documents
have been executed and delivered.
Section 2.10 Mergers and Consolidations of the Trust. The
Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other
body, except as described below. The Trust may at the request of
the Company, with the consent of the Administrative Trustees and
without the consent of the Holders of the Trust Securities,
consolidate, amalgamate, merge with or into, or be replaced by a
trust organized as such under the laws of any state; provided,
that (i) such successor entity either (x) expressly assumes all
of the obligations of the Trust with respect to the Trust
Securities or (y) substitutes for the Preferred Securities other
securities having substantially the same terms as the Trust
Securities (herein referred to as the "Successor Securities") so
long as the Successor Securities rank the same as the Trust
Securities rank in priority with respect to Distributions and
payments upon liquidation, redemption and otherwise, (ii) the
Company expressly appoints a trustee of such successor entity
possessing the same powers and duties as the Property Trustee as
the holder of legal title to the Junior Subordinated Notes, (iii)
the Preferred Securities or any Successor Securities are listed,
or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed,
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation,
amalgamation or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Securities
(including any Successor Securities) in any material respect,
(vi) such successor entity has a purpose identical to that of the
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Trust, (vii) prior to such merger, consolidation, amalgamation,
or replacement, the Company has received an opinion from
independent counsel to the Trust experienced in such matters to
the effect that (A) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and
privileges of the Holders of the Trust Securities (including any
Successor Securities) in any material respect, and (B) following
such merger, consolidation, amalgamation or replacement, neither
the Trust nor such successor entity will be required to register
as an investment company under the Investment Company Act of
1940, and (viii) the Company guarantees the obligations of such
successor entity under the Successor Securities at least to the
extent provided by the Guarantee. Notwithstanding the foregoing,
the Trust shall not, except with the consent of Holders of 100%
in liquidation amount of the Trust Securities, consolidate,
amalgamate, merge with or into, or be replaced by any other
entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation,
amalgamation, merger or replacement would cause the Trust or the
successor entity to be classified as other than a grantor trust
for federal income tax purposes.
ARTICLE III
Payment Account
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and an
agent of the Property Trustee shall have exclusive control and
sole right of withdrawal with respect to the Payment Account for
the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All
monies and other property deposited or held from time to time in
the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders
and for distribution as herein provided, including (and subject
to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect to,
the Junior Subordinated Notes. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
Distributions; Redemption
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Section 4.01 Distributions.
(a) Distributions on the Trust Securities shall be
cumulative and accrue from the Issue Date and, except in the
event that the Depositor exercises its right to extend the
interest payment period for the Junior Subordinated Notes
pursuant to Section 104 of the Supplemental Indenture, shall be
payable quarterly in arrears on March 31, June 30, September 30
and December 31 of each year, commencing on March 31, 1996. If
any date on which Distributions are otherwise payable on the
Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, payment of such
distribution shall be made on the immediately preceding Business
Day, in each case, with the same force and effect as if made on
such date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be
fixed at a rate of 7.375% per annum of the Liquidation Amount of
the Trust Securities. The amount of Distributions payable for
any full quarterly period shall be computed on the basis of
twelve 30-day months and a 360-day year. If the interest payment
period for the Junior Subordinated Notes is extended pursuant to
Section 104 of the Supplemental Indenture (an "Extension
Period"), then the rate per annum at which Distributions on the
Trust Securities accumulate shall be increased by an amount such
that the aggregate amount of Distributions that accumulate on all
Trust Securities during any such Extension Period is equal to the
aggregate amount of interest (including interest payable on
unpaid interest at the percentage rate per annum set forth above,
compounded quarterly) that accrues during any such Extension
Period on the Junior Subordinated Notes. The payment of such
deferred interest, together with interest thereon, will be
distributed to the Holders of the Trust Securities as received at
the end of any Extension Period. The amount of Distributions
payable for any period shall include the Additional Amounts, if
any.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the
extent that the Trust has legally and immediately available funds
in the Payment Account for the payment of such Distributions.
(d) Quarterly payments of Distributions, including
Additional Amounts, if any, on the Trust Securities on each
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities on the
relevant record date, which shall be the close of business on the
fifteenth calendar day prior to the relevant Distribution Date.
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Each Trust Security upon registration of transfer of or in
exchange for or in lieu of any other Trust Security shall carry
the rights of Distributions accrued (including Additional
Amounts, if any) and unpaid, and to accrue (including Additional
Amounts, if any), which were carried by such other Trust
Security.
Section 4.02 Redemption.
(a) On each Redemption Date with respect to the Junior
Subordinated Notes, the Trust will be required to redeem a Like
Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date to
each Holder of Trust Securities to be redeemed, at such Holder's
address appearing in the Security Register. All notices of
redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the total Liquidation Amount of the
Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price
will become due and payable upon each such Trust Security to
be redeemed and that interest thereon will cease to accrue
on and after such date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from
the contemporaneous redemption of Junior Subordinated Notes.
Redemptions of the Trust Securities shall be made and the
Redemption Price shall be deemed payable on each Redemption Date
only to the extent that the Trust has funds legally and
immediately available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 2:00 New York time,
on the Redemption Date, subject to Section 4.02(c), the Property
Trustee will, so long as the Preferred Securities are in book-
entry only form, irrevocably deposit with the Clearing Agency for
the Preferred Securities funds sufficient to pay the applicable
Redemption Price. If the Preferred Securities are no longer in
book-entry only form, the Property Trustee, subject to Section
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4.02(c), shall irrevocably deposit with the Paying Agent funds
sufficient to pay the applicable Redemption Price and will give
the Paying Agent irrevocable instructions to pay the Redemption
Price to the Holders thereof upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the
Holders of such Trust Securities as they appear on the Register
for the Trust Securities on the relevant record dates for the
related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then upon the date of
such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price, but
without interest, and such Securities will cease to be
outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if
such Business Day is in the next succeeding calendar year,
payment of such distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and
effect as if made on such date. In the event that payment of the
Redemption Price in respect of Trust Securities is improperly
withheld or refused and not paid either by the Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accrue at the then applicable rate,
from such Redemption Date originally established by the Trust for
such Preferred Securities to the date such Redemption Price is
actually paid.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the recordholders thereof as they appear on the
Securities Register for the Trust Securities on the relevant
record date, which shall be the close of business on the
fifteenth calendar day prior to the Redemption Date.
(f) If less than all the Outstanding Trust Securities are
to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be
allocated 3% to the Common Securities and 97% to the Preferred
Securities, with such adjustments that each amount so allocated
shall be divisible by $25. The particular Preferred Securities
to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by
such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for a
redemption of portions (equal to $25 or integral multiple
thereof) of the Liquidation Amount of Preferred Securities of a
denomination larger than $25; provided, however, that before
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undertaking redemption of the Preferred Securities on other than
a pro rata basis, the Property Trustee shall have received an
Opinion of Counsel that the status of the Trust as a grantor
trust for federal income tax purposes would not be adversely
affected. The Property Trustee shall promptly notify the
Security Registrar in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation
Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate,
in the case of any Preferred Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount
of Preferred Securities which has been or is to be redeemed.
(g) Subject to the foregoing provisions of Section 4.02 and
to applicable law (including, without limitation, United States
federal securities laws), the Company or its Affiliates may, at
any time and from time to time, purchase outstanding Preferred
Securities by tender, in the open market or by private agreement.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts,
if applicable) on, and the Redemption Price of, the Trust
Securities, as applicable, shall be made pro rata based on the
Liquidation Amount of the Trust Securities; provided, however,
that if on any Distribution Date or Redemption Date an Indenture
Event of Default shall have occurred and be continuing, no
payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and
no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on
all Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities, shall have been made or
provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of
all Distributions (including Additional Amounts, if applicable)
on, or Redemption Price of, Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Indenture Event of
Default, the Holder of Common Securities will be deemed to have
waived any such Event of Default under the Trust Agreement until
the effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Events of Default under the Trust
Agreement with respect to the Preferred Securities have been so
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cured, waived or otherwise eliminated, the Property Trustee shall
act solely on behalf of the Holders of the Preferred Securities
and not the Holder of the Common Securities, and only the Holders
of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
Section 4.04 Payment Procedures. Payments in respect of
the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall
appear on the Securities Register or, if the Preferred Securities
are held by a Clearing Agency, such Distributions shall be made
to the Clearing Agency, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable distribution
dates. Payments in respect of the Common Securities shall be
made in such manner as shall be mutually agreed between the
Property Trustee and the Holder of the Common Securities.
Section 4.05 Tax Returns and Reports. The Administrative
Trustee(s) shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States federal, state
and local tax and information returns and reports required to be
filed by or in respect of the Trust. Prior to January 31 of each
year, the Administrative Trustee(s) shall provide or cause to be
provided to each Holder an Internal Revenue Service Form 1099
which will report income and OID with respect to such securities.
ARTICLE V
Trust Securities Certificates
Section 5.01 Initial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section
2.03 and until the issuance of the Trust Securities, and at any
time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section 5.02 The Trust Securities Certificates. Each of
the Preferred and Common Securities Certificates shall be issued
in minimum denominations of $25 and integral multiples in excess
thereof. The Trust Securities Certificates shall be executed on
behalf of the Trust by manual or facsimile signature of at least
one Administrative Trustee. Trust Securities Certificates
bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly
issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and
delivery of such Trust Securities Certificates or did not hold
such offices at the date of authentication and delivery of such
Trust Securities Certificates. A transferee of a Trust
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Securities Certificate shall become a Securityholder, and shall
be entitled to the rights and subject to the obligations of a
Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to
Section 5.04.
Section 5.03 Authentication of Trust Securities
Certificates. On the Issue Date, the Administrative Trustees
shall cause Trust Securities Certificates, in an aggregate
Liquidation Amount as provided in Sections 2.04 and 2.05, to be
executed on behalf of the Trust, authenticated and delivered to
or upon the written order of the Depositor signed by its Chairman
of the Board, its President or any Vice President, without
further corporate action by the Depositor, in authorized
denominations. No Trust Securities Certificate shall entitle its
holder to any benefit under this Trust Agreement, or shall be
valid for any purpose, unless there shall appear on such Trust
Securities Certificate a certificate of authentication
substantially in the form set forth in Exhibit E or Exhibit C, as
applicable, executed by at least one Administrative Trustee by
manual signature; such authentication shall constitute conclusive
evidence that such Trust Securities Certificate shall have been
duly authenticated and delivered hereunder. All Trust Securities
Certificates shall be dated the date of their authentication.
Section 5.04 Registration of Transfer and Exchange of
Preferred Securities Certificates. The Securities Registrar
shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.08, a Securities Register in
which, subject to such reasonable regulations as it may
prescribe, the Securities Registrar shall provide for the
registration of Preferred Securities Certificates and the Common
Securities Certificates (subject to Section 5.10 in the case of
the Common Securities Certificates) and registration of transfers
and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities
Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained
pursuant to Section 5.08, the Administrative Trustees shall
execute, authenticate and deliver in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of authentication by the
Administrative Trustee or Trustees. The Securities Registrar
shall not be required to register the transfer of any Preferred
Securities that have been called for redemption. At the option
of a Holder, Preferred Securities Certificates may be exchanged
for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate
Liquidation Amount upon surrender of the Preferred Securities
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Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Trustees and the Securities Registrar duly
executed by the Holder or his attorney duly authorized in
writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and
subsequently disposed of by the Security Registrar in accordance
with its customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but
the Securities Registrar may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Preferred Securities
Certificates.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If (a) any mutilated Trust Securities
Certificate shall be surrendered to the Securities Registrar, or
if the Securities Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the
Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of
them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees or any one of them on
behalf of the Trust shall execute and authenticate and make
available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of any
new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require
the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to
this Section shall constitute conclusive evidence of an ownership
interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Trust Securities Certificate shall
be found at any time.
Section 5.06 Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration
of transfer, the Trustees or the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall
be registered in the Securities Register as the owner of such
Trust Securities Certificate for the purpose of receiving
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distributions and for all other purposes whatsoever, and neither
the Trustees nor the Securities Registrar shall be bound by any
notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to
be furnished to (i) the Depositor and the Property Trustee semi-
annually, not later than June 1 and December 1 in each year and
(ii) the Depositor or the Property Trustee, as the case may be,
within 15 days after receipt by any Administrative Trustee of a
request therefor from the Depositor or the Property Trustee, as
the case may be, in writing, a list, in such form as the
Depositor or the Property Trustee, as the case may be, may
reasonably require, of the names and addresses of the
Securityholders as of a date not more than 15 days prior to the
time such list is furnished. If three or more Securityholders or
one or more Holders of Trust Securities Certificates evidencing
not less than 25% of the outstanding Liquidation Amount apply in
writing to the Administrative Trustees, and such application
states that the applicants desire to communicate with other
Securityholders with respect to their rights under this Trust
Agreement or under the Trust Securities Certificates and such
application is accompanied by a copy of the communication that
such applicants propose to transmit, then the Administrative
Trustees shall, within five Business Days after the receipt of
such application, afford such applicants access during normal
business hours to the current list of Securityholders. Each
Holder, by receiving and holding a Trust Securities Certificate,
shall be deemed to have agreed not to hold either the Depositor
or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from
which such information was derived.
Section 5.08 Maintenance of Office or Agency. The
Administrative Trustees shall maintain in the Borough of
Manhattan, New York, an office or offices or agency or agencies
where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust
Securities Certificates may be served. The Administrative
Trustees initially designate Chemical Bank, 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 to Securityholders from the
Payment Account and shall report the amounts of such
distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to
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withdraw funds from the Payment Account for the purpose of making
the distributions referred to above. The Administrative Trustees
may revoke such power and remove the Paying Agent if such
Trustees determine in their sole discretion that the Paying Agent
shall have failed to perform its obligations under this Agreement
in any material respect. The Paying Agent shall initially be the
Property Trustee, and it may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. The
Property Trustee shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Administrative Trustees and
the Depositor. In the event that the Property Trustee shall no
longer be the Paying Agent, the Administrative Trustees shall
appoint a successor that is acceptable to the Depositor to act as
Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent
or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The
Paying Agent shall return all unclaimed funds to the Property
Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall
apply to the Property Trustee also in its role as Paying Agent,
for so long as the Property Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context
requires otherwise.
Section 5.10 Ownership of Common Securities by Depositor.
On the Issue Date, the Depositor shall acquire, and thereafter
retain, beneficial and record ownership of the Common Securities.
Any attempted transfer of the Common Securities, except for
transfers by operation of law, shall be void. The Administrative
Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS
NOT TRANSFERABLE".
Section 5.11 Book-Entry Preferred Securities Certificates;
Common Securities Certificate.
(a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry
Preferred Securities Certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on
behalf of, the Trust. Such Preferred Securities Certificate or
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Certificates shall initially be registered on the Securities
Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a definitive Preferred
Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities
Certificates have been issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall
be in full force and effect;
(ii) the Securities Registrar and the Trustees
shall be entitled to deal with the Clearing Agency for all
purposes of this Trust Agreement relating to the Book-Entry
Preferred Securities Certificates (including the payment of
principal of and interest on the Book-Entry Preferred
Securities and the giving of instructions or directions to
Owners of Book-Entry Preferred Securities) as the sole
Holder of Book-Entry Preferred Securities and shall have no
obligations to the Owners thereof;
(iii) to the extent that the provisions of this
Section conflict with any other provisions of this Trust
Agreement, the provisions of this Section shall control;
(iv) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Owners and
the Clearing Agency and/or the Clearing Agency Participants.
Pursuant to the Certificate Depository Agreement, unless and
until Definitive Preferred Securities Certificates are
issued pursuant to Section 5.13, the Clearing Agency will
make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the
Preferred Securities to such Clearing Agency Participants;
and
(v) whenever this Trust Agreement requires or
permits actions to be taken based upon instructions or
directions of Holders of Trust Securities Certificates
evidencing a specified percentage of the aggregate
Liquidation Amount, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has
received instructions to such effect from Owners and/or
Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial
interest in the applicable class of Trust Securities
Certificates and has delivered such instructions to the
Trustees.
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(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of
a definitive Common Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a
notice or other communication to the Owners is required under
this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant
to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the
Clearing Agency, and shall have no obligations to the Owners.
Section 5.13 Definitive Preferred Securities Certificates.
If (i) the Depositor advises the Trustees in writing that the
Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Preferred
Securities Certificates, and the Depositor is unable to locate a
qualified successor, or (ii) the Depositor at its option advises
the Trustees in writing that it elects to terminate the book-
entry system through the Clearing Agency, then the Administrative
Trustees shall notify the Clearing Agency and Holders of the
Preferred Securities. Upon surrender to the Administrative
Trustees of the typewritten Preferred Securities Certificate or
Certificates representing the Book-Entry Preferred Securities
Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees or any one of them
shall execute and authenticate the Definitive Preferred
Securities Certificates in accordance with the instructions of
the Clearing Agency. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected
in relying on, such instructions. Upon the issuance of
Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities
Certificates as Securityholders. The Definitive Preferred
Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of
them.
Section 5.14 Rights of Securityholders. The legal title
to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than the beneficial ownership interest in the
assets of the Trust conferred by their Trust Securities, and they
shall have no right to call for any partition or division of
property, profits or rights of the Trust except as described
below. The Trust Securities shall be personal property giving
only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive rights
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and when issued and delivered to Securityholders against payment
of the purchase price therefor will be fully paid and
nonassessable by the Trust. Except as otherwise provided in the
Expense Agreement and Section 10.01 hereof, the Holders of the
Trust Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.10 or
Section 10.03 of this Trust Agreement, in the Subordinated
Indenture, and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of
the Trust Securities Certificates, be construed so as to
constitute the Securityholders from time to time as partners or
members of an association.
(b) So long as any Junior Subordinated Notes are held by
the Property Trustee, the Trustees shall not (i) direct the time,
method and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or executing any trust or
power conferred on the Indenture Trustee with respect to such
Junior Subordinated Notes, (ii) waive any past default which is
waivable under Section 513 of the Subordinated Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Junior Subordinated Notes shall be due and
payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Junior
Subordinated Notes, where such consent shall be required, or to
any other action, as holder of the Junior Subordinated Notes,
under the Subordinated Indenture, without, in each case,
obtaining the prior approval of the Holders of at least 66-2/3%
in Liquidation Amount of the Preferred Securities; provided,
however, that where a consent under the Subordinated Indenture
would require the consent of each holder of Junior Subordinated
Notes affected thereby, no such consent shall be given by the
Trustees without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of
Preferred Securities, except pursuant to a subsequent vote of the
Holders of Preferred Securities. The Property Trustee shall
notify all Holders of the Preferred Securities of any notice of
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default received from the Indenture Trustee with respect to the
Junior Subordinated Notes. In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Trustees shall,
at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not
be classified as other than a grantor trust for United States
federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i)
any action that would adversely affect the powers, references or
special rights of the Preferred Securities, whether by way of
amendment to the Trust Agreement or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders
of Outstanding Preferred Securities as a class will be entitled
to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the
Holders of at least 66-2/3% in Liquidation Amount of the
Outstanding Preferred Securities. In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Trustees shall,
at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not
be classified as other than a grantor trust for United States
federal income tax purposes on account of such action.
Section 6.02 Notice of Meetings. Notice of all meetings
of the Preferred Securityholders, stating the time, place and
purpose of the meeting, shall be given by the Administrative
Trustees pursuant to Section 10.08 to each Preferred
Securityholder of record, at his registered address, at least 15
days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further
notice.
Any and all notice to which any Preferred Securityholder
hereunder may be entitled and any and all communications shall be
deemed duly served or given if mailed, postage prepaid, addressed
to any Preferred Securityholders of record at his last known
address as recorded on the Security Register.
Section 6.03 Meetings of Preferred Securityholders. No
annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter upon the written request of
the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time
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in their discretion, call a meeting of Preferred Securityholders
to vote on any matters as to the which Preferred Securityholders
are entitled to vote.
Preferred Securityholders of record of 50% of the Preferred
Securities (based upon their Liquidation Amount), present in
person or by proxy, shall constitute a quorum at any meeting of
Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Preferred Securityholders of record present, in person or by
proxy, holding more than 66-2/3% of the Preferred Securities
(based upon their Liquidation Amount) held by the Preferred
Securityholders of record present, either in person or by proxy,
at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be
entitled to one vote for each $25 of Liquidation Amount
represented by their Trust Securities in respect of any matter as
to which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc. At any meeting of
Securityholders, any Securityholder entitled to vote may vote by
proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution
of the Property Trustee, proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to
vote. When Trust Securities are held jointly by several persons,
any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such
joint owners or their proxies so present disagree as to any vote
to be cast, such vote shall not be received in respect of such
Trust Securities. A proxy purporting to be executed by or on
behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger.
Section 6.06 Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may
be taken without a meeting if Securityholders holding at least
66-2/3% of all outstanding Trust Securities entitled to vote in
respect of such action (or such other proportion thereof as shall
be required by any express provision of this Trust Agreement)
shall consent to the action in writing (based upon their
Liquidation Amount).
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Section 6.07 Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written
consent, or to participate in any distribution on the Trust
Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any
meeting of Securityholders or the payment of distribution or
other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record
for such purposes.
Section 6.08 Acts of Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
appointed in writing; and, except as otherwise expressly provided
herein, such action shall become effective when such instrument
or instruments are delivered to the Administrative Trustees.
Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgements of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
manner which the Trustees deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor
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or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any
particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
liquidation amount.
If any dispute shall arise between the Securityholders of
Trust Securities and the Administrative Trustees or among such
Securityholders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect
to such matter.
Section 6.09 Inspection of Records. Upon reasonable
notice to the Trustees, the records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE VII
Representations and Warranties of the Trustees
Section 7.01 Representations and Warranties of the
Trustee. The Bank, the Delaware Bank, the Property Trustee and
the Delaware Trustee, each on behalf of and as to itself, hereby
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(a) the Bank is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws
of the State of New York, and the Delaware Trustee is a banking
corporation or trust company duly organized, validly existing and
in good standing under the laws of the State of Delaware;
(b) each of the Bank and the Delaware Bank has full
corporate power, authority and legal right to execute, deliver
and perform their obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery
and performance by it of this Trust Agreement;
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(c) this Trust Agreement has been duly authorized, executed
and delivered by each of the Bank and the Delaware Bank and
constitutes the valid and legally binding agreement of each of
the Bank and the Delaware Bank, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles;
(d) the execution, delivery and performance by each of the
Bank and the Delaware Bank of this Trust Agreement have been duly
authorized by all necessary corporate action on the part of the
Bank, Property Trustee, the Delaware Bank and the Delaware
Trustee and do not require any approval of stockholders of the
Bank or the Delaware Bank and such execution, delivery and
performance will not (i) violate the Bank's or the Delaware
Bank's Charter or By-laws, or (ii) violate any law, governmental
rule or regulation of the United States or the State of New York
or Delaware, as the case may be, governing the banking or trust
powers of the Bank and the Property Trustee or the Delaware Bank
and the Delaware Trustee, or any order, judgment or decree
applicable to the Bank, the Property Trustee, the Delaware Bank
or the Delaware Trustee; and
(e) neither the authorization, execution or delivery by the
Bank or the Delaware Bank of this Trust Agreement, nor the
consummation of any of the transactions by the Bank, the Property
Trustee, the Delaware Bank or the Delaware Trustee (as
appropriate in context) contemplated herein or therein, nor the
issuance of the Trust Securities Certificates pursuant to this
Trust Agreement require the consent or approval of, the giving of
notice to, the registration with or the taking of any other
action with respect to any governmental authority or agency under
any existing federal, New York or Delaware law governing the
banking or trust powers of the Bank or the Delaware Bank.
ARTICLE VIII
The Trustees
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, the Trust Indenture Act. Notwithstanding
the foregoing, no provision of this Trust Agreement shall require
the Trustees to expend or risk their own funds or otherwise incur
any financial liability in the performance of any of their duties
hereunder, or in the exercise of any of their rights or powers,
if they shall have reasonable grounds for believing that
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repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to them. Whether or not
therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of
or affording protection to the Trustees shall be subject to the
provisions of this Section.
(b) All payments made by the Property Trustee in respect of
the Trust Securities shall be made only from the income and
proceeds from the Trust Property and only to the extent that
there shall be sufficient income or proceeds from the Trust
Property to enable the Property Trustee to make payments in
accordance with the terms hereof. Each Securityholder, by its
acceptance of a Trust Security, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent
available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.01(b)
does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property
Trustee, in the Trust Indenture Act.
Section 8.02 Notice of Defaults. Within 90 days after the
occurrence of any default, the Property Trustee shall transmit,
in the manner and to the extent provided in Section 10.08, notice
of any default known to the Property Trustee to the
Securityholders, the Administrative Trustees and the Depositor,
unless such default shall have been cured or waived. For the
purpose of this Section, the term "default" means any event which
is, or after notice or lapse of time or both would become, an
Event of Default.
Section 8.03 Certain Rights of Property Trustee. Subject
to the provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate
of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action, or (B) in
construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
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herein, or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of
action to be taken. The Property Trustee shall take
such action, or refrain from taking such actions as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee
shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) the Property Trustee may consult with counsel of its
selection and the written advice of such counsel or any
Opinion of Counsel shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(iv) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Trust Agreement at the request or direction of any
of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have
offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such
request or direction;
(v) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
approval, bond or other document, unless requested in
writing to do so by one or more Securityholders;
(vi) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys,
provided that the Property Trustee shall be responsible
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for its own negligence or recklessness with respect to
selection of any agent or attorney appointed by it
hereunder.
Section 8.04 Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust
Securities Certificates shall be taken as the statements of the
Trust, and the Trustees do not assume any responsibility for
their correctness. The Trustees shall not be accountable for the
use or application by the Trust of the proceeds of the Trust
Securities in accordance with Section 2.05.
The Property Trustee may conclusively assume that any funds
held by it hereunder are legally available unless an officer of
the Property Trustee assigned to its Corporate Trustee
Administrative Department shall have received written notice from
the Company, any Holder or any other Trustee that such funds are
not legally available.
Section 8.05 May Hold Securities. Except as provided in
the definition of the term "Outstanding" in Article I, any
Trustee or any other agent of the Trustees or the Trust, in its
individual or any other capacity, may become the owner or pledgee
of Trust Securities and may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such
other agent.
Section 8.06 Compensation; Fees; Indemnity.
The Depositor agrees:
(1) to pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder
(which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (including
the reasonable compensation and the expenses and disbursements of
their agents and counsel), except any such expense, disbursement
or advance as may be attributable to their negligence or bad
faith; and
(3) to indemnify the Trustees for, and to hold the Trustees
harmless against, any and all loss, damage, claims, liability or
expense incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the costs and
expenses of defending themselves against any claim or liability
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in connection with the exercise or performance of any of its
powers or duties hereunder.
The provisions of this Section 8.06 shall survive the
termination of this Agreement.
Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee
hereunder with respect to the Trust Securities. The Property
Trustee shall be a Person that has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to
the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this
Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity
authorized to conduct a trust business and with its principal
place of business in the State of Delaware that shall act through
one or more persons authorized to bind such entity.
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Property Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
Section 8.09 Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in
which any part of the Trust Property may at the time be located,
the Holder of the Common Securities and the Property Trustee
shall have power to appoint, and upon the written request of the
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Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such Trust Property, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable,subject to the other
provisions of this Section. If the Depositor does not join in
such appointment within 15 days after the receipt by it of a
request so to do, or in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment.
Any co-trustee or separate trustee appointed pursuant to this
Section shall satisfy the requirements of Section 8.07.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property,
title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged, and delivered by the
Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject
to the following terms, namely:
(i) The Trust Securities shall be executed,
authenticated and delivered and all rights, powers, duties,
and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees
hereunder, shall be exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations
hereby conferred or imposed upon the Property Trustee in
respect of any property covered by such appointment shall be
conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-
trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed,
the Property Trustee shall be incompetent or unqualified to
perform such Act, in which event such rights, powers,
duties, and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an
instrument in writing executed by it, with the written
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concurrence of the Depositor, may accept the resignation of
or remove any co-trustee or separate trustee appointed under
this Section, and, in case an Event of Default under the
Subordinated Indenture has occurred and is continuing, the
Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join
with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned
or removed may be appointed in the manner provided in this
Section.
(iv) No co-trustee or separate trustee hereunder
shall be personally liable by reason of any act or omission
of the Property Trustee, or any other such trustee
hereunder.
(v) The Trustees shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section 8.10 Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (the
"Relevant Trustee") and no appointment of a successor Relevant
Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Relevant Trustee in
accordance with the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time by giving
written notice thereof to the Securityholders. If the instrument
of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the
resigning Relevant Trustee may petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
Unless an Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by
Act of the Holder of the Common Securities. If an Event of
Default shall have occurred and be continuing, the Relevant
Trustee may be removed at such time by Act of the Securityholders
of a majority in Liquidation Amount of the Preferred Securities
Certificates, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust).
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If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Trustee at a time when no Event
of Default shall have occurred and be continuing, the Holder of
the Common Securities, by Act of the Holder of the Common
Securities delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Relevant Trustee shall
resign, be removed or become incapable of continuing to act as
the Relevant Trustee at a time when an Event of Default shall
have occurred and be continuing, the Holders of Preferred
Securities, by Act of the Securityholders of a majority in
Liquidation Amount of the Preferred Securities then outstanding
delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees, and the
Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If no successor Relevant Trustee shall have been
so appointed in accordance with this Section 8.10 and accepted
appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder of Trust Securities
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee, and each
appointment of a successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name of the successor
Relevant Trustee and the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event of any Administrative Trustee or a
Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the act of the
remaining Administrative Trustee or (ii) otherwise by the
Depositor (with the successor in each case being an individual
who satisfies the eligibility requirement for Administrative
Trustees set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor believes that any
Administrative Trustee has become incompetent or incapacitated,
the Depositor, by notice to the remaining Trustees, may terminate
the status of such Person as an Administrative Trustee (in which
case the vacancy so created will be filled in accordance with the
preceding sentence).
Section 8.11 Acceptance of Appointment by Successor. In
case of the appointment hereunder of a successor Relevant
Trustee, every such successor Relevant Trustee so appointed shall
execute, acknowledge and deliver to the Trust and to the retiring
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Relevant Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Relevant Trustee; but, on the request of the
Depositor or the successor Relevant Trustee, such retiring
Relevant Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Relevant
Trustee all the rights, powers and trusts of the retiring
Relevant Trustee and shall duly assign, transfer and deliver to
such successor Relevant Trustee all property and money held by
such retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the
Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant
Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant
Trustee shall be qualified and eligible under this Article.
Section 8.12 Merger, Conversion, Consolidation or
Succession to Business. Any corporation or other body into which
the Property Trustee, Delaware Trustee or any Administrative
Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any corporation or other
body resulting from any merger, conversion or consolidation to
which such Relevant Trustee shall be a party, or any corporation
or other body succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the
successor of such Relevant Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee shall be or
become a creditor of the Depositor or the Trust (or any other
obligor upon the Junior Subordinated Notes or the Trust
Securities), the Property Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of
claims against the Depositor or Trust (or any such other
obligor). For purposes of Section 311(b)(4) and (6) of the Trust
Indenture Act:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in
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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, 1996, if required by Section 313(a) of the Trust
Indenture Act, the Property Trustee shall transmit a brief report
dated as of such May 15 with respect to any of the events
specified in such Section 313(a) that may have occurred since the
later of the date of this Agreement or the preceding May 15.
(b) The Property Trustee shall transmit to Securityholders
the reports required by Section 313(b) of the Trust Indenture Act
at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted
in the manner and to the persons required by Sections 313(c) and
(d) of the Trust Indenture Act.
Section 8.15 Reports to the Property Trustee. The
Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and
information as required by Section 314 (if any) and, within 120
days after the end of each fiscal year, the compliance
certificate required by Section 314(a)(4) of the Trust Indenture
Act in the form and in the manner required by Section 314 of the
Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions
Precedent. Each of Depositor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given pursuant to
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Section 314(c)(1) of the Trust Indenture Act shall comply with
Section 314(e) of the Trust Indenture Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be four,
provided that Depositor, by written instrument may increase or
decrease the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and
the number of Administrative Trustees is not reduced pursuant to
Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such
vacancy is filled by the appointment of an Administrative Trustee
in accordance with Section 8.10, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all powers granted to
the Administrative Trustees and shall discharge the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee, may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.07(A),
including any registration statement or amendment thereto filed
with the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to
delegate from time to time to such of their number the doing of
such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders. If (i) the Trust fails to pay distributions in
full on the Preferred Securities for more than 20 consecutive
quarterly distribution periods, or (ii) an Event of Default
occurs and is continuing, then the Holders of Preferred
Securities will rely on the enforcement by the Property Trustee
of its rights against the Company as the holder of the Junior
Subordinated Notes. In addition, the Holders of a majority in
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aggregate liquidation amount of the Preferred Securities will
have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the
Property Trustee or to direct the exercise of any trust or power
conferred upon the Property Trustee under the Trust Agreement,
including the right to direct the Property Trustee to exercise
the remedies available to it as a holder of the Junior
Subordinated Notes, provided that such direction shall not be in
conflict with any rule of law or with this Trust Agreement, and
could not involve the Property Trustee in personal liability in
circumstances where reasonable indemnity would not be adequate.
If the Property Trustee fails to enforce its rights under the
Junior Subordinated Notes, a Holder of Preferred Securities may,
to the extent permitted by applicable law, institute a legal
proceeding against the Company to enforce its rights under this
Trust Agreement without first instituting any legal proceeding
against the Property Trustee or any other person or entity,
including the Trust; it being understood and intended that no one
or more of such Holders shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this
Trust Agreement to affect, disturb or prejudice the rights of any
other of such Holders or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any
right under this Trust Agreement, except in the manner herein
provided and for the equal and ratable benefit of all such
Holders.
ARTICLE IX
Termination and Liquidation
Section 9.01 Termination Upon Expiration Date. The Trust
shall automatically terminate on April 30, 2026 (the "Expiration
Date") or earlier pursuant to Section 9.02.
Section 9.02 Early Termination. Upon the first to occur
of any of the following events (such first occurrence, an "Early
Termination Event"), the Trust shall be dissolved and terminated
in accordance with the terms hereof:
(i) the occurrence of a Bankruptcy Event,
dissolution or liquidation of, in respect of, the Depositor,
or the dissolution of the Trust pursuant to judicial decree;
(ii) the occurrence of a Special Event (as defined
in the Supplemental Indenture) and the election of the
Depositor to distribute the Junior Subordinated Notes to the
Preferred Securityholders; provided, however, that if at the
time there is available to the Trust the opportunity to
eliminate the Special Event within 90 days after the
occurrence thereof by taking some ministerial action, such
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as filing a form or making an election, or using some other
reasonable measure, which would have no adverse effect on
the Trust, the Depositor or the Holders, the Trust (through
the Administrative Trustees) will pursue such measure in
lieu of redemption or dissolution; and
(iii) the payment at maturity or redemption of all
of the Junior Subordinated Notes, and the consequent payment
of the Preferred Securities.
Section 9.03 Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby
shall terminate upon the latest to occur of the following: (a)
the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust or upon the redemption of all of the
Trust Securities pursuant to Section 4.02, of all amounts or
instruments required to be distributed hereunder upon the final
payment of the Trust Securities; (b) the payment of any expenses
owed by the Trust; and (c) the discharge of all administrative
duties of the Administrative Trustees, including the performance
of any tax reporting obligations with respect to the Trust or the
Securityholders.
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii)
of Section 9.02 occurs, the Junior Subordinated Notes shall not
be distributed unless prior thereto, the Property Trustee shall
have received an Opinion of Counsel experienced in such matters
to the effect that the Holders will not recognize any gain or
loss for United States federal income tax purposes as a result of
such dissolution and distribution of Junior Subordinated Notes.
(b) In connection with a distribution of the Junior
Subordinated Notes, each Holder of Trust Securities shall be
entitled to receive, after the satisfaction of creditors of the
Trust (as evidenced by a certificate of the Administrative
Trustees), a Like Amount of Junior Subordinated Notes. Notice of
liquidation shall be given by the Trustees by first-class mail,
postage prepaid, mailed not later than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities
at such Holder's address appearing in the Security Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation
Date, the Trust Securities will no longer be deemed to be
outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a Like
Amount of Junior Subordinated Notes; and
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(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for Junior Subordinated Notes.
(c) In order to effect the liquidation of the Trust and
distribution of the Junior Subordinated Notes to Securityholders,
the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall
establish such procedures as it shall deem appropriate to affect
the distribution of Junior Subordinated Notes in exchange for the
Outstanding Trust Securities Certificates.
(d) After the Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Junior Subordinated Notes will be
issued to Holders of Trust Securities Certificates, upon
surrender of such certificates to the Administrative Trustees or
their agent for exchange, (iii) any Trust Securities Certificates
not so surrendered for exchange will be deemed to represent a
Like Amount of Junior Subordinated Notes, accruing interest at
the rate provided for in the Junior Subordinated Notes from the
last Distribution Date on which a Distribution was made on such
Trust Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Junior Subordinated Notes) and
(iv) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Junior
Subordinated Notes upon surrender of Trust Securities
Certificates.
(e) The Depositor will use its best efforts to have the
Junior Subordinated Notes that are distributed in exchange for
the Preferred Securities to be listed on such securities exchange
as the Preferred Securities are then listed. The Depositor may
elect to have the Junior Subordinated Notes issued in book-entry
form to the Clearing Agency or its nominee pursuant to a
Certificate Depository Agreement substantially in the form of
Exhibit B.
Section 9.05 Bankruptcy. If an early termination event
specified in clause (i) of Section 9.02 has occurred, the Trust
shall be liquidated. The Property Trustee shall, subject to the
receipt of an Opinion of Counsel to the effect set forth in
Section 9.04(a), distribute the Junior Subordinated Notes to the
Securityholders as provided in Section 9.04, unless such
distribution is determined by the Administrative Trustees not to
be practical, in which event the Holders will be entitled to
receive out of the assets of the Trust available for distribution
to Securityholders, after satisfaction of liabilities to
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creditors, an amount equal to the Liquidation Amount per Trust
Security plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation
Distribution"). If such Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available
to pay in full the aggregate Liquidation Distribution, then,
subject to the next succeeding sentence, the amounts payable by
the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holder of the Common
Securities will be entitled to receive Liquidation Distributions
upon any such dissolution, winding-up or termination pro rata
(determined as aforesaid) with Holders of Preferred Securities,
except that, if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over
the Common Securities.
ARTICLE X
Miscellaneous Provisions
Section 10.01 Guarantee by the Depositor. Subject to the
terms and conditions hereof, the Depositor irrevocably and
unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and
all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than obligations of the Trust to
pay to Holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be. This guarantee is intended to be
for the benefit, of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received
notice hereof.
Section 10.02 Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial
or otherwise, in a Trust Security shall not operate to terminate
this Trust Agreement, nor entitle the legal representatives or
heirs of such person or any Securityholder for such person, to
claim an accounting, take any action or bring any proceeding in
and for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section 10.03 Amendment.
(a) This Trust Agreement may be amended from time to time
by the Trustees and the Depositor, without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement
50
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any provision herein or therein which may be inconsistent with
any other provision herein or therein, or to make any other
provisions with respect to matters or questions arising under
this Trust Agreement, which shall not be inconsistent with the
other provisions of this Trust Agreement, provided, however, that
any such amendment shall not adversely affect in any material
respect the interests of any Securityholder or (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Trust will
not be classified as other than a grantor trust for United States
federal income tax purposes at any time that any Trust Securities
are outstanding; provided, however, that, except in the case of
clause (ii), such action shall not adversely affect in any
material respect the interests of any Securityholder and, in the
case of clause (i), any amendments of this Trust Agreement shall
become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 10.03(c) hereof, any
provision in this Trust Agreement may be amended by the Trust or
the Trustees with (i) the consent of Trust Securityholders
representing not less than 66-2/3% (based upon Liquidation
Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect
that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment will not affect the
Trust's status as a grantor trust for United States federal
income tax purposes or the Trust's exemption from status of an
"investment company" under the Investment Company Act of 1940, as
amended.
(c) In addition to and notwithstanding any other provision
in this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance with
Section 6.03 or 6.06 hereof), this Trust Agreement may not be
amended to (i) change the amount or timing of any Distribution on
the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust
Securities as of a specified date, (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such
payment on or after such date, or (iii) change the consent
required pursuant to Section 10.03.
(d) Notwithstanding any other provisions of this Trust
Agreement, the Trustees shall not enter into or consent to any
amendment to this Trust Agreement which would cause the Trust to
fail or cease to qualify for the exemption from status of an
"investment company" under the Investment Company Act of 1940, as
amended, afforded by Rule 3a-5 thereunder.
(e) Without the consent of the Depositor, this Trust
Agreement may not be amended in a manner which imposes any
51
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additional obligation on the Depositor. In executing any
amendment permitted by this Trust Agreement, the Trustees shall
be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted
by this Trust Agreement. The Trustees may, but shall not be
obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or
liabilities under this Trust Agreement or otherwise.
(f) In the event that any amendment to this Trust Agreement
is made, the Administrative Trustees shall promptly provide to
the Depositor a copy of such amendment.
Section 10.04 Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 10.05 Governing Law. THIS TRUST AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST
AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE
TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE; PROVIDED THAT THE
IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE SHALL BE
GOVERNED BY NEW YORK LAW.
Section 10.06 Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to
both the Trust and the Trustees, including any successor by
operation of law.
Section 10.07 Headings. The Article and Section headings
are for convenience only and shall not affect the construction of
this Trust Agreement.
Section 10.08 Notice and Demand. Any notice, demand or
other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or
upon any Securityholder or the Depositor may be given or served
in writing by deposit thereof, postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each
case, addressed, (i) in the case of a Preferred Securityholder,
to such Preferred Securityholder as such Securityholder's name
and address appear on the Securities Register and (ii) in the
case of the Common Securityholder or the Depositor, to Alabama
Power Company, 600 North 18th Street, Birmingham, Alabama 35291,
Attention: Treasurer, Facsimile No. (205) 250-2445, with a copy
to the Assistant Secretary, Facsimile No. (770) 821-2894. Such
notice, demand or other communication to or upon a Securityholder
52
<PAGE>
shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust or the Trustees shall be
given in writing addressed (until another address is published by
the Trust) as follows: (i) with respect to the Property Trustee
and the Delaware Trustee, Chemical Bank, 450 West 33rd Street,
New York, New York, 10001, Attention: Corporate Trustee
Administration Department; Chemical 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 I c/o Treasurer. Such notice, demand
or other communication to or upon the Trust or the Trustees shall
be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the applicable Trustee.
Section 10.09 Agreement Not to Petition. Each of the
Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders, that it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in
writing not to take such action and should be stopped and
precluded therefrom and such other defenses, if any, as counsel
for the Trustees or the Trust may assert. The provisions of this
Section 10.09 shall survive the termination of this Trust
Agreement.
Section 10.10 Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this
Trustee Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is
a Trustee for the purposes of the Trust Indenture Act.
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(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in
this Trust Agreement by any of the provisions of the Trust
Indenture Act, such required provision shall control.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Trust
Securities as equity securities representing interests in the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
54
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Trust Agreement or have caused this Trust Agreement to be
executed on their behalf, all as of the day and year first above
written.
ALABAMA POWER COMPANY
By:
Art P. Beattie
Its Vice President, Secretary
and Treasurer
CHEMICAL BANK,
as Property Trustee
By:
Title:
CHEMICAL BANK DELAWARE,
as Delaware Trustee
By:
Title:
WILLIAM E. ZALES, JR.,
as Administrative Trustee
J. RANDY DERIEUX,
as Administrative Trustee
55
<PAGE>
EXHIBIT A
RESTATED CERTIFICATE OF TRUST
OF
ALABAMA POWER CAPITAL TRUST I
THIS RESTATED CERTIFICATE OF TRUST of Alabama Power Capital
Trust I (the "Trust"), a business trust under the Delaware
Business Trust Act (12 Del. C. Section 3801, et seq.), dated
January ___, 1996, is being duly executed and filed by the
undersigned, as trustees of the Trust, to amend and restate the
original Certificate of Trust of the Trust.
1. Name. The name of the business trust being formed
hereby is Alabama Power Capital Trust I.
2. Original Certificate. The original Certificate of the
Trust was filed on November 8, 1995.
3. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the
State of Delaware is Chemical Bank Delaware, 1201 Market Street,
Wilmington, Delaware 19801.
4. Effective Date. This Restated Certificate of Trust
shall be effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of
the Trust have executed this Restated Certificate of Trust as of
the date first above written.
CHEMICAL BANK DELAWARE,
as Delaware Trustee
By:
Name:
Title:
CHEMICAL BANK,
as Property Trustee
By:
Name:
Title:
Exhibit A - Page 1
<PAGE>
WILLIAM E. ZALES, JR.,
as Administrative Trustee
By:
Name:
Title:
J. RANDY DERIEUX,
as Administrative Trustee
By:
Name:
Title:
Exhibit A - Page 2
<PAGE>
EXHIBIT B
_______________, 1996
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: General Counsel's Office
Re: Alabama Power Capital Trust I
7.375% Trust Preferred Securities
Ladies and Gentlemen:
The purpose of this letter is to set out certain matters
relating to the above-referenced Preferred Securities (CUSIP No.
_________ (the "Securities") of Alabama Power Capital Trust I, a
Delaware statutory business trust (the "Trust"). The Securities
are guaranteed to the extent set forth in the Prospectus relating
to the Securities dated January 17, 1996 by Alabama Power
Company, an Alabama corporation. The Trust is selling the
Securities to certain underwriters (the "Underwriters") pursuant
to an Underwriting Agreement dated January 17, 1996, and the
Underwriters wish to take delivery of the Securities through The
Depository Trust Company ("DTC"). The Trust is acting as
transfer agent and registrar with respect to the Securities.
Chemical Bank, in its capacity as Property Trustee of the Trust,
will act as paying agent in relation to the Securities (the
"Property Trustee").
To induce DTC to accept the Securities as eligible for
deposit at DTC, and to act in accordance with its rules with
respect to the Securities, the Trust and the Property Trustee
severally, as set forth below each make the following
representations to DTC.
1. Before the closing of the sale of the Securities to the
Underwriters, which is expected to occur on or about
______________, 1996 there shall be deposited with DTC one or
more global certificates (the "Global Certificate") registered in
the name of DTC's nominee, Cede & Co., for 3,880,000 Securities.
2. The Amended and Restated Trust Agreement dated as of
January 1, 1996 provides for the voting by holders of the
Securities under certain circumstances. The Trust shall
establish a record date for such purposes and shall, to the
extent possible, give DTC notice of such record date not less
than 15 calendar days in advance of such record date. Notices to
DTC pursuant to this paragraph by telecopy shall be sent to DTC's
Reorganization Department at (212) 709-6896 or (212) 709-6897,
Exhibit B - Page 1
<PAGE>
and receipt of such notices shall be confirmed by telephoning
(212) 709-6870. Notices to DTC pursuant to this paragraph by
mail or by other means shall be sent to DTC's Reorganization
Department as indicated in paragraph 6.
3. In the event of stock split, conversion,
recapitalization, reorganization or any other similar transaction
resulting in the cancellation of all or any part of the
Securities outstanding, the Trust shall send DTC a notice of such
event 5 business days prior to the effective date of such event.
4. In the event of a distribution with respect to the
Securities outstanding, the Property Trustee shall send DTC a
notice specifying the amount of and conditions, if any,
applicable to such payment or distribution. Such notice shall be
sent to DTC by a secure means (e.g., legible telecopy, registered
or certified mail, overnight delivery) in a timely manner
designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before the
record date for such distribution. (The Property Trustee shall
have a method to verify subsequently the use of such means and
the timeliness of such notice.) After establishing the amount of
payment to be made on the Securities, the Property Trustee will
notify DTC's Dividend Department of such payment 5 business days
prior to payment date.
5. In the event of a redemption by the Trust of the
Securities, notice to holders of the Securities by the Trust
specifying the terms of the redemption shall be sent to DTC not
less than 30 days prior to such event by a secure means in the
manner set forth in the preceding paragraph. Such redemption
notice shall be sent to DTC's Call Notification Department at
(516) 227-4039 or 4190, and receipt of such notice shall be
confirmed by telephoning (516) 227-4070. Notice by mail or by
any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the
Securities, notice by the Trust to holders of the Securities
specifying the terms of the tender shall be sent to DTC by the
Trust by a secure means by the close of business on the Business
Day before such notice is given to such Holders. Notices to DTC
pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes),
shall be sent by telecopy to DTC's Reorganization Department at
(212) 709-1093 or (212) 709-1094, and receipt of such notices
shall be confirmed by telephoning (212) 709-6884, or by mail or
any other means to:
Exhibit B - Page 2
<PAGE>
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall
contain the CUSIP number of the Securities and the accompanying
description of the Securities, which, as of the date of this
letter, is "Alabama Power Capital Trust I, 7.375% Trust Preferred
Securities."
8. Notices to DTC's Dividend Department by telecopy shall
be sent to (212) 709-1723. Such notices by mail or by any other
means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 22nd Floor
New York, New York 10004
The Trust shall confirm DTC's receipt of such telecopy by
telephoning the Dividend Department at (212) 709-1270.
9. Payments of cash distributions, including payments on
redemption, with respect to the Securities evidenced by the
Global Certificate shall be received by Cede & Co., as nominee of
DTC, or its registered assigns in same day funds on each payment
date (or in accordance with existing arrangements between the
Property Trustee and DTC). Such payments shall be made payable
to the order of Cede & Co.
10. Other cash payments shall be received by Cede & Co., as
a nominee of DTC, or its registered assigns in next day funds on
each payment date (or in accordance with existing arrangements
between the Property Trustee and DTC). Such payments shall be
made payable to the order of Cede & Co., and shall be addressed
as follows:
NFDS Redemption Department
The Depository Trust Department
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
11. DTC may direct the Trust and the Property Trustee to
use any other telecopy number or address of DTC as the number or
address to which notices or payments may be sent.
12. In the event of a conversion, redemption, or any other
similar transaction (e.g., tender made and accepted in response
to the Trust's invitation) necessitating a reduction in the
Exhibit B - Page 3
<PAGE>
aggregate number of Securities outstanding, DTC, in its
discretion: (a) may request the Trust to issue and authenticate
a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and
amount of such reduction.
13. DTC may discontinue its services as a securities
depositary with respect to the Global Certificate at any time by
giving reasonable notice to the Trust (at which time DTC will
confirm with the Trust the aggregate number of Securities
deposited with it) and discharging its responsibilities with
respect thereto under applicable law. Under such circumstances,
at DTC's request the Trust shall cooperate fully with DTC by
taking prompt appropriate action to make alternative arrangements
for book-entry settlement for the Securities or to make available
one or more separate certificates evidencing Securities, to any
participant having Securities credited to its DTC account.
14. In the event that the Trust determines that beneficial
owners of Securities shall be able to obtain certificated
Securities the Trust shall notify DTC of the availability of
certificates. In such event, the Trust shall issue, transfer and
exchange certificates in appropriate amounts, as required by DTC
and others.
15. Nothing herein shall require the Trustees to advance
their own funds for any purposes.
This letter may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original
but all such counterparts shall together constitute but one and
the same instrument.
Very truly yours,
Alabama Power Capital Trust I
By:
Name:
Title: Administrative Trustee
CHEMICAL BANK,
as Property Trustee of
Alabama Power Capital Trust I
By:
Name:
Title:
Exhibit B - Page 4
<PAGE>
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:
Authorized Officer
Exhibit B - Page 5
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1 120,000
Certificate Evidencing Common Securities
of
Alabama Power Capital Trust I
Common Securities
(liquidation amount $25 per Common Security)
Alabama Power Capital Trust I, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"),
hereby certifies that Alabama Power Company (the "Holder") is the
registered owner of one hundred twenty thousand (120,000) common
securities of the Trust representing undivided beneficial
ownership interests in the assets of the Trust and designated the
Common Securities (liquidation amount $25 per Common Security)
(the "Common Securities"). In accordance with Section 5.10 of
the Trust Agreement (as defined below) the Common Securities are
not transferable, except by operation of law, and any attempted
transfer hereof shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of January 1, 1996, as the same may be amended
from time to time (the "Trust Agreement"), including the
designation of the terms of the Common Securities as set forth
therein. The Trust will furnish a copy of the Trust Agreement to
the Holder without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
Exhibit C - Page 1
<PAGE>
IN WITNESS WHEREOF, the Administrative Trustees of the Trust
have executed this certificate this 24th day of January, 1996.
Alabama Power Capital Trust I
By:
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 C - Page 2
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agree-
ment") is made as of ___________ ___, 1996, between Alabama Power
Company, an Alabama corporation (the "Company"), and Alabama
Power Capital Trust I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its 7.375% Common
Securities (the Common Securities) to and receive Junior
Subordinated Notes from the Company and to issue and sell Alabama
Power Capital Trust I 7.375% Trust Preferred Securities, Series A
(the "Preferred Securities") with such powers, preferences and
special rights and restrictions as are set forth in the Amended
and Restated Trust Agreement of the Trust dated as of January 1,
1996 as the same may be amended from time to time (the "Trust
Agreement"); and
WHEREAS, the Company is the issuer of the Junior
Subordinated Notes.
NOW, THEREFORE, in consideration of the purchase by each
holder of the Preferred Securities, which purchase the Company
hereby agrees shall benefit the Company and which purchase the
Company acknowledges will be made in reliance upon the execution
and delivery of this Agreement, the Company and the Trust hereby
agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Company. Subject to the
terms and conditions hereof, the Company hereby irrevocably and
unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and
all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than obligations of the Trust to
pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be
for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received
notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of
Exhibit D - Page 1
<PAGE>
Preferred Securities or any Beneficiary must restore payment of
any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof
by the Company and Chemical Bank, as guarantee trustee, or under
this Agreement for any reason whatsoever. This Agreement is
continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. The Company hereby waives
notice of acceptance of this Agreement and of any Obligation to
which it applies or may apply, and the Company hereby waives
presentment, demand for payment, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices
and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of the Company under this Agreement shall
in no way be affected or impaired by reason of the happening from
time to time of any of the following:
(a) the extension of time for the payment the Trust of
all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in
connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or
exercise any right, privilege, power or remedy conferred on
the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt or, or other similar proceedings
affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, the Company with respect to the
happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against the Company and the Company waives any
right or remedy to require that any action be brought against the
Trust or any other person or entity before proceeding against the
Company.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and
agreements contained in this Agreement shall bind the successors,
Exhibit D - Page 2
<PAGE>
assigns, receivers, trustees and representatives of the Company
and shall inure to the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to-wit:
Alabama Power Capital Trust I
c/o Chemical Bank
450 West 33rd Street
New York, New York 10001
Facsimile No.:
Attention: Corporate Trustee
Administration Department
Alabama Power Company
600 North 18th Street
Birmingham, Alabama 35291
Facsimile No.:
Attention:
Section 2.04. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF ALABAMA.
THIS AGREEMENT is executed as of the date and year first
above written.
ALABAMA POWER COMPANY
By:
Name:
Title:
ALABAMA POWER CAPITAL TRUST I
By:
____________________________,
as
Administrative Trustee
Exhibit D - Page 3
<PAGE>
EXHIBIT E
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York
Corporation ("DTC"), to Alabama Power Capital Trust I or its
agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative
of DTC (and any payment made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC),
any transfer, pledge, or other use hereof for value or otherwise
by or to any person is wrongful inasmuch as the registered owner
thereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
3,880,000
P-1 CUSIP NO. 010383206
Certificate Evidencing Preferred Securities
of
Alabama Power Capital Trust I
7.375% Trust Preferred Securities,
(Liquidation amount $25 per Preferred Security)
Alabama Power Capital Trust I, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"),
hereby certifies that Cede & Co. (the "Holder") is the registered
owner of three million eight hundred eighty thousand (3,880,000)
preferred securities of the Trust representing undivided
beneficial ownership interest in the assets of the Trust and
designated the Alabama Power Capital Trust I 7.375% Trust
Preferred Securities (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities
are transferable on the books and records of the Trust, in person
or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as
provided in Section 5.04 of the Trust Agreement (as defined
below). The designations, rights, privileges, restrictions,
references and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the
Preferred Securities represented hereby are issued and shall in
all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust, dated as of
January 1, 1996, as the same may be amended from time to time
(the "Trust Agreement") including the designation of the terms of
Preferred Securities as set forth therein. The holder of this
certificate is entitled to the benefits of a guarantee by Alabama
Power Company, an Alabama corporation (the "Company") pursuant to
Exhibit E - Page 1
<PAGE>
a Guarantee Agreement between the Company and Chemical Bank, as
guarantee trustee, dated as of January 1, 1996 (the "Guarantee")
to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the holder of this
certificate without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
Exhibit E - Page 2
<PAGE>
IN WITNESS WHEREOF, the Administrative Trustees of the Trust
have executed this certificate this 24th day of January, 1996.
ALABAMA POWER CAPITAL TRUST I
By:
WILLIAM E. ZALES, JR.,
as Administrative Trustee
By:
J. RANDY DERIEUX,
as Administrative Trustee
CERTIFICATE OF AUTHORIZATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
as Administrative Trustee
Exhibit E - Page 3
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
(Insert assignee's social security or tax identification umber)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Security Certificate on the
books of the Trust. The agent may substitute another to act for
him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
<PAGE>
Exhibit E
ALABAMA POWER COMPANY
TO
CHEMICAL BANK,
TRUSTEE.
SUBORDINATED NOTE INDENTURE
DATED JANUARY 1, 1996
<PAGE>
ALABAMA POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
SUBORDINATED NOTE INDENTURE, DATED AS OF JANUARY 1, 1996
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(S) 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 608
610
(S) 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 613
311(b)(4) . . . . . . . . . . . . . . . . . . . . . 613(a)
(b)(6) . . . . . . . . . . . . . . . . . . . . . 613(b)
(S) 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 701
702(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(S) 313(a) . . . . . . . . . . . . . . . . . . . . . . . 703(a)
313(b) . . . . . . . . . . . . . . . . . . . . . . . 703(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . 703(c)
704
(d) . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(S) 314(a) . . . . . . . . . . . . . . . . . . . . . . 704, 1007
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(S) 315(a) . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 514
(S) 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 508
(S) 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . 1003
(S) 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 107
<PAGE>
TABLE OF CONTENTS
PAGE
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . 1
SECTION 101. DEFINITIONS . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Interest . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . 3
Certificate of a Firm of Independent Public
Accountants . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company Request" or "Company Order" . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . 4
Guarantee . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . 4
Junior Subordinated Note . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . 6
Property Trustee . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . 7
Securities Trust . . . . . . . . . . . . . . . . . . . . 7
Security Register" and "Security Registrar" . . . . . . 7
Senior Indebtedness . . . . . . . . . . . . . . . . . . 7
i
<PAGE>
Special Record Date . . . . . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . . . . . 8
Trust Agreement . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . 8
Trust Securities . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 8
Vice President . . . . . . . . . . . . . . . . . . . . . 8
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS . . . . . 8
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE . . . . 9
SECTION 104. ACTS OF HOLDERS . . . . . . . . . . . . . . . 10
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY . . . . 11
SECTION 106. NOTICE TO HOLDERS OF JUNIOR SUBORDINATED
NOTES; WAIVER . . . . . . . . . . . . . . . . 11
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT . . . . . . 12
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS . . . 12
SECTION 109. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . 12
SECTION 110. SEPARABILITY CLAUSE . . . . . . . . . . . . . 12
SECTION 111. BENEFITS OF INDENTURE . . . . . . . . . . . . 12
SECTION 112. GOVERNING LAW . . . . . . . . . . . . . . . . 13
SECTION 113. LEGAL HOLIDAYS . . . . . . . . . . . . . . . . 13
SECTION 114. APPOINTMENT OF AGENT FOR SERVICE . . . . . . . 13
ARTICLE TWO
FORMS OF JUNIOR SUBORDINATED NOTES . . . . . 14
SECTION 201. FORMS GENERALLY . . . . . . . . . . . . . . . 14
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION . . . . . . . . . . . . . . . . 14
SECTION 203. JUNIOR SUBORDINATED NOTES ISSUABLE IN THE
FORM OF A GLOBAL SECURITY . . . . . . . . . . 14
ii
<PAGE>
ARTICLE THREE
THE JUNIOR SUBORDINATED NOTES . . . . . . . 17
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES . . . . . 17
SECTION 302. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING . . . . . . . . . . . . . . . . . . . . 19
SECTION 303. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE . . . . . . . . . . . . . . . . . . . 21
SECTION 304. MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR
SUBORDINATED NOTES . . . . . . . . . . . . . . 22
SECTION 305. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED . . . . . . . . . . . . . . . . . . 23
SECTION 306. PERSONS DEEMED OWNERS . . . . . . . . . . . . 25
SECTION 307. CANCELLATION . . . . . . . . . . . . . . . . . 25
SECTION 308. COMPUTATION OF INTEREST . . . . . . . . . . . 25
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . 25
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE . . . 25
SECTION 402. APPLICATION OF TRUST MONEY . . . . . . . . . . 27
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . 27
SECTION 501. EVENTS OF DEFAULT . . . . . . . . . . . . . . 27
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT . . . . . . . . . . . . . . . . . . 30
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE . . . . . . . . . . . . 31
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . 31
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF JUNIOR SUBORDINATED NOTES . . . . . . . . . 32
SECTION 506. APPLICATION OF MONEY COLLECTED . . . . . . . . 33
iii
<PAGE>
SECTION 507. LIMITATION ON SUITS . . . . . . . . . . . . . 33
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST . . . . . . . 34
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES . . . . . . 34
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE . . . . . . . . 34
SECTION 511. DELAY OR OMISSION NOT WAIVER . . . . . . . . . 35
SECTION 512. CONTROL BY HOLDERS OF JUNIOR SUBORDINATED
NOTES . . . . . . . . . . . . . . . . . . . . 35
SECTION 513. WAIVER OF PAST DEFAULTS . . . . . . . . . . . 35
SECTION 514. UNDERTAKING FOR COSTS . . . . . . . . . . . . 36
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS . . . . . . . 36
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . 37
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES . . . . . 37
SECTION 602. NOTICE OF DEFAULTS . . . . . . . . . . . . . . 38
SECTION 603. CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . 38
SECTION 604. NOT RESPONSIBLE FOR RECITALS OF ISSUANCE OF
JUNIOR SUBORDINATED NOTES . . . . . . . . . . 40
SECTION 605. MAY HOLD JUNIOR SUBORDINATED NOTES . . . . . . 40
SECTION 606. MONEY HELD IN TRUST . . . . . . . . . . . . . 40
SECTION 607. COMPENSATION AND REIMBURSEMENT . . . . . . . . 41
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS . . . 41
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY . . . 41
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR . . . . . . . . . . . . . . . . . . 42
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR . . . . 44
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS . . . . . . . . . . . . 45
iv
<PAGE>
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY . . . . . . . . . . . . . . . . . . . 45
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT . . . . . 46
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . 48
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS . . . . . . . . . . . . . 48
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS
TO HOLDERS . . . . . . . . . . . . . . . . . . 48
SECTION 703. REPORTS BY TRUSTEE . . . . . . . . . . . . . . 49
SECTION 704. REPORTS BY COMPANY . . . . . . . . . . . . . . 49
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . 50
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS . . . . . . . . . . . . . . . . 50
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED . . . . . . 51
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . 51
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS . . . . . . . . . . . . . . . . . . . 51
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS . . . . . . . . . . . . . . . . . . . 52
SECTION 903. GENERAL PROVISIONS REGARDING SUPPLEMENTAL
INDENTURE . . . . . . . . . . . . . . . . . . 53
SECTION 904. EXECUTION OF SUPPLEMENTAL INDENTURES . . . . . 54
SECTION 905. EFFECT OF SUPPLEMENTAL INDENTURES . . . . . . 54
SECTION 906. CONFORMITY WITH TRUST INDENTURE ACT . . . . . 54
SECTION 907. REFERENCE IN JUNIOR SUBORDINATED NOTES TO
SUPPLEMENTAL INDENTURES . . . . . . . . . . . 54
v
<PAGE>
ARTICLE TEN
COVENANTS . . . . . . . . . . . . 55
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST . . . . . . 55
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY . . . . . . . 55
SECTION 1003. MONEY FOR JUNIOR SUBORDINATED NOTES PAYMENTS
TO BE HELD IN TRUST . . . . . . . . . . . . . 55
SECTION 1004. ADDITIONAL INTEREST . . . . . . . . . . . . . 57
SECTION 1005. CORPORATE EXISTENCE . . . . . . . . . . . . . 58
SECTION 1006. LIMITATIONS ON DIVIDEND AND CERTAIN OTHER
PAYMENTS . . . . . . . . . . . . . . . . . . . 58
SECTION 1007. STATEMENT AS TO COMPLIANCE . . . . . . . . . . 58
SECTION 1008. WAIVER OF CERTAIN COVENANTS . . . . . . . . . 59
SECTION 1009. COVENANTS REGARDING TRUST . . . . . . . . . . 59
ARTICLE ELEVEN
REDEMPTION OF JUNIOR SUBORDINATED NOTES . . . . 60
SECTION 1101. APPLICABILITY OF ARTICLE . . . . . . . . . . . 60
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE . . . . 60
SECTION 1103. SELECTION BY TRUSTEE OF JUNIOR SUBORDINATED
NOTES TO BE REDEEMED . . . . . . . . . . . . . 60
SECTION 1104. NOTICE OF REDEMPTION . . . . . . . . . . . . . 61
SECTION 1105. DEPOSIT OF REDEMPTION PRICE . . . . . . . . . 62
SECTION 1106. JUNIOR SUBORDINATED NOTES PAYABLE ON
REDEMPTION DATE . . . . . . . . . . . . . . . 62
SECTION 1107. JUNIOR SUBORDINATED NOTES REDEEMED IN PART . . 62
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . 63
SECTION 1201. APPLICABILITY OF ARTICLE . . . . . . . . . . . 63
vi
<PAGE>
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
JUNIOR SUBORDINATED NOTES . . . . . . . . . . 63
SECTION 1203. REDEMPTION OF JUNIOR SUBORDINATED NOTES FOR
SINKING FUND . . . . . . . . . . . . . . . . . 64
ARTICLE THIRTEEN
SUBORDINATION . . . . . . . . . . . 64
SECTION 1301. JUNIOR SUBORDINATED NOTES SUBORDINATE TO
SENIOR INDEBTEDNESS . . . . . . . . . . . . . 64
SECTION 1302. PAYMENT OF PROCEEDS UPON DISSOLUTION, ETC. . . 64
SECTION 1303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN
DEFAULT . . . . . . . . . . . . . . . . . . . 66
SECTION 1304. PAYMENT PERMITTED IF NO DEFAULT . . . . . . . 66
SECTION 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS . . . . . . . . . . . . . . . . . 67
SECTION 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS . 67
SECTION 1307. TRUSTEE TO EFFECTUATE SUBORDINATION . . . . . 68
SECTION 1308. NO WAIVER OF SUBORDINATION PROVISIONS . . . . 68
SECTION 1309. TRUST MONEYS NOT SUBORDINATED . . . . . . . . 69
SECTION 1310. NOTICE TO THE TRUSTEE . . . . . . . . . . . . 69
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT . . . . . . . . . . . . . . 70
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS . . . . . . . . . . . . . . . . . 70
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S
RIGHTS . . . . . . . . . . . . . . . . . . . . 70
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS . . . . . 71
SECTION 1315. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS . . . . . . . . . . . 71
vii
<PAGE>
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS . . . . . . . . 71
SECTION 1401. NO RECOURSE AGAINST OTHERS . . . . . . . . . . 71
SECTION 1402. SET-OFF . . . . . . . . . . . . . . . . . . . 71
SECTION 1403. ASSIGNMENT; BINDING EFFECT . . . . . . . . . . 72
SECTION 1404. ADDITIONAL INTEREST . . . . . . . . . . . . . 72
viii
<PAGE>
SUBORDINATED NOTE INDENTURE
THIS SUBORDINATED NOTE INDENTURE is made as of January 1,
1996, between ALABAMA POWER COMPANY, a corporation duly organized
and existing under the laws of the State of Alabama (herein
called the "Company"), having its principal office at 600 North
18th Street, Birmingham, Alabama 35291, and CHEMICAL BANK, a
banking corporation duly organized and existing under the laws of
the State of New York, having its principal corporate trust
office at 450 West 33rd Street, New York, New York 10001, as
Trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the execution and
delivery of this Subordinated Note Indenture to provide for the
issuance from time to time of its unsecured subordinated
debentures, notes or other evidences of indebtedness (herein
called the "Junior Subordinated Notes"), to be issued in one or
more series as in this Subordinated Note Indenture provided; and
WHEREAS, all things necessary to make this Subordinated Note
Indenture a valid agreement of the Company, in accordance with
its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and
the purchase of the Junior Subordinated Notes by the Holders
thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Junior Subordinated
Notes or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Subordinated Note Indenture, except
as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
1
<PAGE>
generally accepted accounting principles in the United
States of America, and, except as otherwise herein expressly
provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at
the date of such computation;
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Subordinated
Note Indenture as a whole and not to any particular Article,
Section or other subdivision; and
(5) Trust Securities related to a particular series of
Junior Subordinated Notes means the series of Trust
Securities the proceeds of the sale of which were loaned to
the Company in exchange for such series of Junior
Subordinated Notes, and the guarantee related to such series
of Trust Securities means the guarantee pursuant to which
the Company has guaranteed, to the extent stated therein,
the payment of distributions and certain other amounts with
respect to such series of Trust Securities.
Certain terms, used principally in Article Six, are defined
in that Article.
"Act", when used with respect to any Holder of a Junior
Subordinated Note, has the meaning specified in Section 104.
"Additional Interest" means (i) such additional amounts as
may be required so that the net amounts received and retained by
the Holder (if the Holder is a Securities Trust) after paying
taxes, duties, assessments or governmental charges of whatever
nature (other than withholding taxes) imposed by the United
States or any other taxing authority will not be less than the
amounts the Holder would have received had no such taxes, duties,
assessments, or other governmental charges been imposed; and (ii)
any interest due and not paid on an Interest Payment Date,
together with interest thereon from such Interest Payment Date to
the date of payment, compounded quarterly, on each Interest
Payment Date.
"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. Notwithstanding the
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foregoing, any Securities Trust organized by the Company shall
not be deemed to be an Affiliate of the Company.
"Authenticating Agent" means any Person or Persons
authorized by the Trustee to authenticate one or more series of
Junior Subordinated Notes.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of the officers
and/or directors of the Company appointed by that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered
to the Trustee.
"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 Trustee's Corporate Trust
Office or Property Trustee's principal corporate trust office is
closed for business.
"Certificate of a Firm of Independent Public Accountants"
means a certificate signed by an independent public accountant or
a firm of independent public accountants who may be the
independent public accountants regularly retained by the Company
or who may be other independent public accountants. Such
accountant or firm shall be entitled to rely upon an Opinion of
Counsel as to the interpretation of any legal matters relating to
such certificate.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, 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.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor corporation
shall have become such pursuant to the applicable provisions of
this Subordinated Note Indenture, and thereafter "Company" shall
mean such successor corporation.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the
Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
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"Corporate Trust Office" means the office of the Trustee in
the Borough of Manhattan, New York City, at which at any
particular time its corporate trust business shall be principally
administered, which office at the date of execution of this
Subordinated Note Indenture is located at 450 West 33rd Street,
New York, New York 10001.
"Corporation" includes corporations, associations, companies
and business trusts.
"Defaulted Interest" has the meaning specified in Section
305.
"Depositary" means, unless otherwise specified by the
Company pursuant to either Section 203 or 301, with respect to
Junior Subordinated Notes of any series issuable or issued as a
Global Security, The Depository Trust Company, New York, New
York, or any successor thereto registered as a clearing agency
under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means with respect to any series of Junior
Subordinated Notes issued hereunder, a Junior Subordinated Note
that is executed by the Company and authenticated and delivered
by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with Section 203 of this Indenture
and any indenture supplemental hereto.
"Guarantee" means a Guarantee Agreement, if any, executed
and delivered by the Company for the benefit of the holders from
time to time of all or a portion of the Trust Securities of a
Securities Trust.
"Holder", when used with respect to any Junior Subordinated
Note, means the Person in whose name the Junior Subordinated Note
is registered in the Security Register.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of the
particular series of Junior Subordinated Notes established as
contemplated by Section 301.
"Interest Payment Date", when used with respect to any
series of Junior Subordinated Notes, means the dates established
for the payment of interest thereon, as provided in the
supplemental indenture for such series.
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"Junior Subordinated Note" has the meaning stated in the
first recital of this Indenture and more particularly means any
Junior Subordinated Notes authenticated and delivered under this
Indenture.
"Maturity", when used with respect to any Junior
Subordinated Note, means the date on which the principal of such
Junior Subordinated Note or an installment of principal becomes
due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to
the Trustee.
"Outstanding", when used with respect to Junior Subordinated
Notes, means, as of the date of determination, all Junior
Subordinated Notes theretofore authenticated and delivered under
this Indenture, except:
(i) Junior Subordinated Notes theretofore
canceled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Junior Subordinated Notes for whose payment
or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Junior
Subordinated Notes; provided that if such Junior
Subordinated Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been
made;
(iii) Junior Subordinated Notes that have been paid
or in exchange for or in lieu of which other Junior
Subordinated Notes have been authenticated and delivered
pursuant to this Indenture, other than any such Junior
Subordinated Notes in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Junior Subordinated Notes are held by a bona fide purchaser
in whose hands such Junior Subordinated Notes are valid
obligations of the Company; and
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(iv) Junior Subordinated Notes, or portions
thereof, converted into or exchanged for another security if
the terms of such Junior Subordinated Notes provide for such
conversion or exchange;
provided, however, that in determining, during any period in
which any Junior Subordinated Notes of a series are owned by any
Person other than the Company or any Affiliate thereof, whether
the Holders of the requisite principal amount of Outstanding
Junior Subordinated Notes of such series have given any request,
demand, authorization, direction, notice, consent or waiver
hereunder, Junior Subordinated Notes of such series owned by the
Company or any Affiliate thereof shall be disregarded and deemed
not to be Outstanding. In determining whether the Trustee shall
be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Junior
Subordinated Notes that the Trustee knows to be so owned by the
Company or an Affiliate of the Company in the above circumstances
shall be so disregarded. Junior Subordinated Notes so owned that
have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Junior
Subordinated Notes and that the pledgee is not the Company or any
Affiliate of the Company.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any
Junior Subordinated Notes on behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Junior Subordinated
Note means every previous Junior Subordinated Note evidencing all
or a portion of the same debt as that evidenced by such
particular Junior Subordinated Note; and, for the purposes of
this definition, any Junior Subordinated Note authenticated and
delivered under Section 304 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Junior Subordinated Note
shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Junior Subordinated Note.
"Property Trustee", when used with respect to the Junior
Subordinated Notes of any series, means the Person designated as
such in the related Trust Agreement.
"Redemption Date", when used with respect to any Junior
Subordinated Note to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
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"Redemption Price", when used with respect to any Junior
Subordinated Note to be redeemed, means the price at which it is
to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Junior Subordinated Notes of any
series means the date specified for that purpose as contemplated
by Section 301, whether or not a Business Day.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of
directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the chairman of the trust
committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any senior trust officer, any
trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Securities Trust" means any statutory business trust formed
by the Company or an Affiliate to issue Trust Securities, the
proceeds of which will be used to purchase Junior Subordinated
Notes of one or more series.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 303.
"Senior Indebtedness" means, with respect to the Company,
(i) any payment due in respect of indebtedness of the Company,
whether outstanding at the date of execution of this Subordinated
Note Indenture or thereafter incurred, created, or assumed, (a)
in respect of money borrowed (including any financial derivative,
hedging or futures contract or similar instrument) and (b)
evidenced by securities, debentures, bonds, notes or other
similar instruments issued by the Company which, by their terms,
are senior or senior subordinated debt securities including,
without limitation, all obligations under its indentures with
various trustees; (ii) all capital lease obligations; (iii) all
obligations issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations of
the Company under any title retention agreement (but excluding
trade accounts payable arising in the ordinary course of business
and long-term purchase obligations); (iv) all obligations for the
reimbursement of any letter of credit, banker's acceptance,
security purchase facility or similar credit transaction; (v) all
obligations of the type referred to in clauses (i) through (iv)
above of other persons the payment of which the Company is
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responsible or liable as obligor, guarantor or otherwise; and
(vi) all obligations of the type referred to in clauses (i)
through (v) above of other persons secured by any lien on any
property or asset of the Company (whether or not such obligation
is assumed by the Company), except for (1) any such indebtedness
that is by its terms subordinated to or pari passu with the
Junior Subordinated Notes and (2) any unsecured indebtedness
between or among the Company or its Affiliates. Such Senior
Indebtedness shall continue to be entitled to the benefits of the
subordination provisions contained in Article Thirteen
irrespective of any amendment, modification or waiver of any term
of such Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted
Interest on the Junior Subordinated Notes of any series means a
date fixed by the Trustee pursuant to Section 305.
"Stated Maturity", when used with respect to any Junior
Subordinated Note or any installment of principal thereof or
interest thereon, means the date specified in such Junior
Subordinated Note as the fixed date on which the principal of
such Junior Subordinated Note or such installment of principal or
interest is due and payable.
"Trust Agreement", when used with respect to a Securities
Trust, means the agreement or instrument that governs the affairs
of such Securities Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, and any reference herein to the Trust Indenture Act
or a particular provision thereof shall mean such Trust Indenture
Act or provision, as the case may be, as amended or replaced from
time to time.
"Trust Securities" means the securities issued by a
Securities Trust evidencing the entire beneficial interest
therein.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee
shall have become such with respect to one or more series of
Junior Subordinated Notes pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
respect to the Junior Subordinated Notes of any series shall mean
the Trustee with respect to Junior Subordinated Notes of that
series.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated
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by a number or a word or words added before or after the title
"vice president."
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall
include
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been
complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
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Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing. Except
as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent, shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive
in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by 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 in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The principal amount and serial numbers of Junior
Subordinated Notes held by any Person, and the date of holding
the same, shall be proved by the Security Register.
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(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of the Holder of any
Junior Subordinated Note shall bind every future Holder of the
same Junior Subordinated Note and the Holder of every Junior
Subordinated Note 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 Trustee or
the Company in reliance thereon, whether or not notation of such
action is made upon such Junior Subordinated Note.
(e) The fact and date of execution of any such instrument
or writing and the authority of the Person executing the same may
also be proved in any other manner which the Trustee deems
sufficient; and the Trustee may in any instance require further
proofwith respect toany of thematters referred toin this Section.
(f) If the Company shall solicit from the Holders of Junior
Subordinated Notes of any series any Act, the Company may, at its
option, by Board Resolution, fix in advance a record date for the
determination of Holders of Junior Subordinated Notes entitled to
take such Act, but the Company shall have no obligation to do so.
Any such record date shall be fixed at the Company's discretion.
If such a record date is fixed, such Act may be sought or given
before or after the record date, but only the Holders of record
at the close of business on such record date shall be deemed to
be Holders of Junior Subordinated Notes for the purpose of
determining whether Holders of the requisite proportion of Junior
Subordinated Notes of such series Outstanding have authorized or
agreed or consented to such Act, and for that purpose the Junior
Subordinated Notes of such series Outstanding shall be computed
as of such record date.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder of a Junior Subordinated
Note or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trustee Administration Department, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-
class postage prepaid, to the Company addressed to the
attention of its Secretary, at 600 North 18th Street,
Birmingham, Alabama 35291, or at any other address
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previously furnished in writing to the Trustee by the
Company.
SECTION 106. NOTICE TO HOLDERS OF JUNIOR SUBORDINATED NOTES;
WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of Junior Subordinated
Notes of any event, such notice shall be sufficiently given if in
writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such
Notice.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case where
notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by
Holders of Junior Subordinated Notes shall be filed with the
Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with
a provision of the Trust Indenture Act that is required to be a
part of and govern this Indenture, such required provision shall
control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
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SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Junior
Subordinated Notes 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 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Junior Subordinated Notes,
express or implied, shall give to any Person, other than the
parties hereto, their successors hereunder and the Holders of
Junior Subordinated Notes and, to the extent provided in Section
1403, the holders of Senior Indebtedness or Trust Securities, any
benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Junior Subordinated Notes shall be
governed by, and construed in accordance with, the internal laws
of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Junior Subordinated Note shall not be a
Business Day, then (notwithstanding any other provision of this
Indenture or of the Junior Subordinated Notes) payment of
interest or principal (and premium, if any) need not be made on
such date, but may be made on the next succeeding Business Day,
except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no interest shall
accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.
SECTION 114. APPOINTMENT OF AGENT FOR SERVICE.
By the execution and delivery of this Indenture, the Company
hereby appoints the Trustee as its agent upon which process may
be served in any legal action or proceeding which may be
instituted in any Federal or State court in the Borough of
Manhattan, New York City, arising out of or relating to the
Junior Subordinated Notes or this Indenture. Service of process
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upon such agent at the office of such agent at 450 West 33rd
Street, New York, New York 10001, Attention: Corporate Trustee
Administration Department (or such other address in the Borough
of Manhattan, New York City, as may be the Corporate Trust Office
of the Trustee), and written notice of such service to the
Company by the Person serving the same addressed as provided in
Section 105, shall be deemed in every respect effective service
of process upon the Company in any such legal action or
proceeding, and the Company hereby submits to the jurisdiction of
any such court in which any such legal action or proceeding is so
instituted. Such appointment shall be irrevocable so long as the
Holders of Junior Subordinated Notes shall have any rights
pursuant to the terms thereof or of this Indenture until the
appointment of a successor by the Company with the consent of the
Trustee and such successor's acceptance of such appointment. The
Company further agrees to take any and all action, including the
execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and
appointment of such agent or successor.
By the execution and delivery of this Indenture, the Trustee
hereby agrees to act as such agent and undertakes promptly to
notify the Company of receipt by it of service of process in
accordance with this Section.
ARTICLE TWO
FORMS OF JUNIOR SUBORDINATED NOTES
SECTION 201. FORMS GENERALLY.
The Junior Subordinated Notes of each series shall be in
substantially the form appended to the supplemental indenture
authorizing such series, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing
such Junior Subordinated Notes, as evidenced by their execution
of the Junior Subordinated Notes.
The Junior Subordinated Notes of each series shall be
issuable in registered form without coupons.
The definitive Junior Subordinated Notes may be printed,
typewritten, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the
officers executing such Junior Subordinated Notes, as evidenced
by their execution of such Junior Subordinated Notes.
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SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's Certificate of Authentication for
a series of Junior Subordinated Notes shall be in substantially
the form appended to the Supplemental Indenture authorizing such
series.
SECTION 203. JUNIOR SUBORDINATED NOTES ISSUABLE IN THE FORM OF
A GLOBAL SECURITY.
(a) If the Company shall establish pursuant to Section 301
that the Junior Subordinated Notes of a particular series are to
be issued in whole or in part in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall,
in accordance with Section 302 and the Company Order delivered to
the Trustee thereunder, authenticate and deliver such Global
Security or Securities, which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount
of the Outstanding Junior Subordinated Notes of such series to be
represented by such Global Security or Securities, (ii) may
provide that the aggregate amount of Outstanding Junior
Subordinated Notes represented thereby may from time to time be
increased or reduced to reflect exchanges, (iii) shall be
registered in the name of the Depositary for such Global Security
or Securities or its nominee, (iv) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's
instruction and (v) shall bear a legend in accordance with the
requirements of the Depositary.
(b) Notwithstanding any other provision of this Section 203
or of Section 303, subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit
such Global Security to be exchanged in whole or in part for
individual Junior Subordinated Notes, a Global Security may be
transferred, in whole but not in part and in the manner provided
in Section 303, only to a nominee of the Depositary for such
Global Security, or to the Depositary, or to a successor
Depositary for such Global Security selected or approved by the
Company, or to a nominee of such successor Depositary.
(c) (1) If at any time the Depositary for a Global
Security notifies the Company that it is unwilling or unable
to continue as Depositary for such Global Security or if at
any time the Depositary for the Junior Subordinated Notes
for such series shall no longer be eligible or in good
standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to
such Global Security. If a successor Depositary for such
Global Security is not appointed by the Company within 90
days after the Company receives such notice or becomes aware
of such ineligibility, the Company will execute, and the
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Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Junior
Subordinated Notes of such series in exchange for such
Global Security, will authenticate and deliver individual
Junior Subordinated Notes of such series of like tenor and
terms in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security in
exchange for such Global Security.
(2) The Company may at any time and in its sole
discretion determine that the Junior Subordinated Notes of
any series issued or issuable in the form of one or more
Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company
Request for the authentication and delivery of individual
Junior Subordinated Notes of such series in exchange in
whole or in part for such Global Security, will authenticate
and deliver individual Junior Subordinated Notes of such
series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of
such Global Security or Securities representing such series
in exchange for such Global Security or Securities.
(3) If specified by the Company pursuant to Section
301 with respect to Junior Subordinated Notes issued or
issuable in the form of a Global Security, the Depositary
for such Global Security may surrender such Global Security
in exchange in whole or in part for individual Junior
Subordinated Notes of such series of like tenor and terms in
definitive form on such terms as are acceptable to the
Company and such Depositary. Thereupon the Company shall
execute, and the Trustee shall authenticate and deliver,
without service charge, (A) to each Person specified by such
Depositary a new Junior Subordinated Note or Notes of the
same series or like tenor and terms and of any authorized
denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and (B) to such
Depositary a new Global Security of like tenor and terms and
in an authorized denomination equal to the difference, if
any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Junior
Subordinated Notes delivered to Holders thereof.
(4) In any exchange provided for in any of the
preceding three paragraphs, the Company will execute and the
Trustee will authenticate and deliver individual Junior
Subordinated Notes in definitive form in authorized
denominations. Upon the exchange of the entire principal
amount of a Global Security for individual Junior
Subordinated Notes, such Global Security shall be cancelled
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by the Trustee. Except as provided in the preceding
paragraph, Junior Subordinated Notes issued in exchange for
a Global Security pursuant to this Section shall be
registered in such names and in such authorized
denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee.
Provided that the Company and the Trustee have so agreed,
the Trustee shall deliver such Junior Subordinated Notes to
the Persons in whose names the Junior Subordinated Notes are
registered.
(5) Any endorsement of a Global Security to reflect
the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Junior
Subordinated Notes represented thereby shall be made in such
manner and by such Person or Persons as shall be specified
therein or in the Company Order to be delivered pursuant to
Section 302 with respect thereto. Subject to the provisions
of Section 302, the Trustee shall deliver and redeliver any
such Global Security in the manner and upon instructions
given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to
Section 302 has been, or simultaneously is, delivered, any
instructions by the Company with respect to such Global
Security shall be in writing but need not be accompanied by
or contained in an Officers' Certificate and need not be
accompanied by an Opinion of Counsel.
ARTICLE THREE
THE JUNIOR SUBORDINATED NOTES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Junior Subordinated Notes
which may be authenticated and delivered under this Indenture is
unlimited.
The Junior Subordinated Notes may be issued in one or more
series. There may be established, pursuant to one or more
indentures supplemental hereto, prior to the issuance of Junior
Subordinated Notes of any series,
(1) the title of the Junior Subordinated Notes of the
series (which shall distinguish the Junior Subordinated
Notes of the series from Junior Subordinated Notes of all
other series);
(2) any limit upon the aggregate principal amount of
the Junior Subordinated Notes of the series which may be
authenticated and delivered under this Indenture (except for
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Junior Subordinated Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu
of, other Junior Subordinated Notes of the series pursuant
to Sections 203, 303, 304, 907 or 1107);
(3) the Person to whom interest on a Junior
Subordinated Note of the series shall be payable if other
than the Person in whose name that Junior Subordinated Note
(or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such
interest;
(4) the date or dates on which the principal of the
Junior Subordinated Notes of the series is payable, and the
right, if any, to extend the Stated Maturity of the Junior
Subordinated Notes and the conditions to such extension;
(5) the rate or rates at which the Junior Subordinated
Notes of the series shall bear interest, if any, or any
method by which such rate or rates shall be determined, the
date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be
payable, the Regular Record Date for the interest payable on
Junior Subordinated Notes on any Interest Payment Date and
the basis upon which interest shall be calculated if other
thanthat of a 360-dayyear consisting oftwelve 30-day months;
(6) the place or places where the principal of (and
premium, if any) and interest, if any, on Junior
Subordinated Notes of the series shall be payable;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which
Junior Subordinated Notes of the series may be redeemed, in
whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem
or purchase Junior Subordinated Notes of the series pursuant
to any sinking fund or analogous provision or at the option
of a Holder thereof and the period or periods within which,
the price or prices at which ,and the terms and conditions
upon which, Junior Subordinated Notes of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the denominations in which Junior Subordinated
Notes of the series shall be issuable;
(10) if the amount of payments of principal of (and
premium, if any) or interest (including Additional Interest)
on the Junior Subordinated Notes of the series may be
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determined with reference to an index or formula, the manner
in which such amounts shall be determined;
(11) if other than the principal amount thereof, the
portion of the principal amount of Junior Subordinated Notes
of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section
502;
(12) any deletions from, modifications of or additions
to the Events of Default or covenants of the Company as
provided herein pertaining to the Junior Subordinated Notes
of the series, and any change in the rights of the Trustee
or Holders of such series pursuant to Section 901 or 902.
(13) any additions to the definitions currently set
forth in this Indenture with respect to such series;
(14) whether the Junior Subordinated Notes of the
series shall be issued in whole or in part in the form of a
Global Security or Securities; the terms and conditions, if
any, upon which such Global Security or Securities may be
exchanged in whole or in part for certificated Junior
Subordinated Notes of such series and of like tenor of any
authorized denomination and the circumstances under which
such exchange may occur, if other than in the manner
provided for in Section 203; the Depositary for such Global
Security or Securities; and the form of any legend or
legends to be borne by any such Global Security in addition
to or in lieu of the legend referred to in Section 203;
(15) the right, if any, of the Company to extend the
interest payment periods of such series of Junior
Subordinated Notes, including the maximum duration of any
such extension or extensions, the Additional Interest, if
any, payable on such Junior Subordinated Notes during any
extension of the interest payment period and any notice
(which shall include notice to the Trustee) that must be
given upon the exercise of such right to extend interest
payment periods;
(16) any restriction or condition on the
transferability of such Junior Subordinated Notes; and
(17) any other terms of the series.
All Junior Subordinated Notes of any one series shall be
substantially identical except as to the date or dates from which
interest, if any, shall accrue and denomination and except as may
otherwise be provided in the terms of such Junior Subordinated
Notes determined or established as provided above. All Junior
Subordinated Notes of any one series need not be issued at the
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same time and, unless otherwise provided, a series may be
reopened for issuances of additional Junior Subordinated Notes of
such series.
SECTION 302. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Junior Subordinated Notes shall be executed on behalf of
the Company by its Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Junior Subordinated
Notes may be manual or facsimile.
Junior Subordinated Notes bearing the manual or facsimile
signatures of individuals who were at the time relevant to the
authorization thereof the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication
and delivery of such Junior Subordinated Notes or did not hold
such offices at the date of such Junior Subordinated Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Junior
Subordinated Notes of any series executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Junior Subordinated Notes,
and the Trustee, in accordance with the Company Order, shall
authenticate and deliver such Junior Subordinated Notes. If all
of the Junior Subordinated Notes of any series are not to be
issued at one time and if the supplemental indenture establishing
such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such
Junior Subordinated Notes and determining the terms of particular
Junior Subordinated Notes of such series, such as interest rate,
maturity date, date of issuance and date from which interest
shall accrue. In authenticating Junior Subordinated Notes
hereunder, and accepting the additional responsibilities under
this Indenture in relation to such Junior Subordinated Notes, the
Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon:
(1) an Opinion of Counsel, to the effect that:
(a) the form and terms of such Junior
Subordinated Notes or the manner of determining
such terms have been established in conformity
with the provisions of this Indenture; and
(b) such Junior Subordinated Notes, when
authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to
any conditions specified in such Opinion of
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Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in
accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency,
reorganization and other laws of general
applicability relating to or affecting the
enforcement of creditors' rights and to general
equity principles; and
(2) an Officers' Certificate stating, to the best
knowledge of each signer of such certificate, that no event
which is, or after notice or lapse of time would become, an
Event of Default with respect to any of the Junior
Subordinated Notes shall have occurred and be continuing.
The Trustee shall not be required to authenticate such Junior
Subordinated Notes if the issue of such Junior Subordinated Notes
pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Junior Subordinated Notes and this
Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
If all the Junior Subordinated Notes of any series are not
to be issued at one time, it shall not be necessary to deliver an
Opinion of Counsel and Officers' Certificate at the time of
issuance of each such Junior Subordinated Note, but such opinion
and certificate shall be delivered at or before the time of
issuance of the first Junior Subordinated Note of such series to
be issued.
Each Junior Subordinated Note shall be dated the date of its
authentication.
No Junior Subordinated Note shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose
unless there appears on such Junior Subordinated Note a
certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such
certificate upon any Junior Subordinated Note shall be conclusive
evidence, and the only evidence, that such Junior Subordinated
Note has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
SECTION 303. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept at the office of the
Security Registrar designated pursuant to this Section 303 or
Section 1002 a register (referred to as the "Security Register")
in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of
Junior Subordinated Notes and of transfers of Junior Subordinated
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Notes. The Trustee is hereby initially appointed as Security
Registrar for the purpose of registering Junior Subordinated
Notes and transfers of Junior Subordinated Notes as herein
provided.
Subject to Section 203, upon surrender for registration of
transfer of any Junior Subordinated Note of any series at the
office or agency maintained for such purpose for such series, the
Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees,
one or more new Junior Subordinated Notes of the same series,
Stated Maturity and original issue date, of any authorized
denominations and of like tenor and aggregate principal amount.
Subject to Section 203, Junior Subordinated Notes of any
series may be exchanged, at the option of the Holder, for Junior
Subordinated Notes of the same series, Stated Maturity and
original issue date, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the
Junior Subordinated Notes to be exchanged at any such office or
agency.
Whenever any Junior Subordinated Notes are so surrendered
for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Junior Subordinated Notes that the
Holder making the exchange is entitled to receive.
All Junior Subordinated Notes issued upon any registration
of transfer or exchange of Junior Subordinated Notes shall be the
valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Junior
Subordinated Notes surrendered upon such registration of transfer
or exchange.
Every Junior Subordinated Note presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Junior Subordinated Notes, but the
Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Junior
Subordinated Notes, other than exchanges pursuant to Section 304,
907 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, to register
the transfer of or to exchange Junior Subordinated Notes of any
series during a period of 15 days immediately preceding the date
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notice is given identifying the serial numbers of the Junior
Subordinated Notes of that series called for redemption, or (ii)
to issue, to register the transfer of or to exchange any Junior
Subordinated Notes so selected for redemption in whole or in
part, except the unredeemed portion of any Junior Subordinated
Note being redeemed in part.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 304. MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR
SUBORDINATED NOTES.
If any mutilated Junior Subordinated Note is surrendered to
the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Junior
Subordinated Note of the same series, Stated Maturity and
original issue date, and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Junior Subordinated Note and (ii) such security or
indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Junior Subordinated Note
has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Junior
Subordinated Note, a new Junior Subordinated Note of the same
series, Stated Maturity and original issue date, and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Junior
Subordinated Note has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a
new Junior Subordinated Note, pay such Junior Subordinated Note.
Upon the issuance of any new Junior Subordinated Note under
this Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Junior Subordinated Note of any series issued
pursuant to this Section in lieu of any destroyed, lost or stolen
Junior Subordinated Note shall constitute an original additional
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contractual obligation of the Company, whether or not the
destroyed, lost or stolen Junior Subordinated Note shall be at
any time enforceable by anyone, and any such new Junior
Subordinated Note shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other
Junior Subordinated Notes of that series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Junior Subordinated Notes.
SECTION 305. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Junior Subordinated Notes, interest
(including Additional Interest) on any Junior Subordinated Note
that is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose
name that Junior Subordinated Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest (including Additional Interest) on any Junior
Subordinated Note of any series that is payable, but is not
punctually paid or duly provided for on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Junior
Subordinated Notes of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Junior Subordinated Note of such series and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the
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proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of
Junior Subordinated Notes of such series at the address of
such Holder as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose
names the Junior Subordinated Notes of such series (or their
respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest (including Additional Interest, if any) on the
Junior Subordinated Notes of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Junior Subordinated Notes
may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Junior Subordinated Note delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Junior Subordinated Note shall carry the rights to interest
accrued (including Additional Interest, if any) and unpaid, and
to accrue (including Additional Interest, if any), which were
carried by such other Junior Subordinated Note.
SECTION 306. PERSONS DEEMED OWNERS.
Prior to due presentment of a Junior Subordinated Note for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
such Junior Subordinated Note is registered as the absolute owner
of such Junior Subordinated Note for the purpose of receiving
payment of principal of (and premium, if any) and (subject to
Section 305) interest (including Additional Interest, if any) on
such Junior Subordinated Note and for all other purposes
whatsoever, whether or not such Junior Subordinated Note be
overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the
contrary.
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SECTION 307. CANCELLATION.
All Junior Subordinated Notes surrendered for payment,
redemption, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and
shall be promptly cancelled by the Trustee. The Company may at
any time deliver to the Trustee for cancellation any Junior
Subordinated Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner
whatsoever, and all Junior Subordinated Notes so delivered shall
be canceled by the Trustee. No Junior Subordinated Notes shall
be authenticated in lieu of or in exchange for any Junior
Subordinated Notes canceled as provided in this Section, except
as expressly permitted by this Indenture. All cancelled Junior
Subordinated Notes held by the Trustee shall be disposed of in
accordance with a Company Order and the Trustee shall promptly
deliver a certificate of disposition to the Company.
SECTION 308. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
for Junior Subordinated Notes of any series, interest on the
Junior Subordinated Notes of each series shall be computed on the
basis of a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of
further effect (except as to any surviving rights of registration
of transfer or exchange of Junior Subordinated Notes herein
expressly provided for) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Junior Subordinated Notes theretofore
authenticated and delivered (other than (i) Junior
Subordinated Notes that have been destroyed, lost or
stolen and that have been replaced as provided for in
Section 304 and (ii) Junior Subordinated Notes for
whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
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(B) all such Junior Subordinated Notes not
theretofore delivered to the Trustee for cancellation
have become due and payable, or have been called for
redemption,
and the Company, in the case of (B) above, has deposited or
caused to be deposited with the Trustee as funds in trust
for the purpose described above an amount sufficient to pay
and discharge the entire indebtedness on such Junior
Subordinated Notes not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and
interest to the date of the Stated Maturity or Redemption
Date, as the case may be, or if the later, the date of
payment;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture
have been complied with.
In the event there are Junior Subordinated Notes of two or
more series hereunder, the Trustee shall be required to execute
an instrument acknowledging satisfaction and discharge of this
Indenture only if requested to do so with respect to Junior
Subordinated Notes of all series as to which it is Trustee and if
the other conditions thereto are met. In the event there are two
or more Trustees hereunder, then the effectiveness of any such
instrument shall be conditioned upon receipt of such instruments
from all Trustees hereunder.
If, subsequent to the date a discharge is effected pursuant
to this Section 401, Additional Interest (in excess of that
established as of the date such discharge is effected) becomes
payable in respect of the series of Junior Subordinated Notes
discharged, in order to preserve the benefits of the discharge
established hereunder, the Company shall irrevocably deposit or
cause to be irrevocably deposited in accordance with the
provisions of this Section 401, within ten Business Days prior to
the date the first payment in respect of any portion of such
excess Additional Interest becomes due, such additional funds as
are necessary to satisfy the provisions of this Section 401 as if
a discharge were being effected as of the date of such subsequent
deposit. Failure to comply with the requirements of this
paragraph shall result in the termination of the benefits of the
discharge established by this Section 401.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
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Section 607, the obligations of the Trustee to any Authenticating
Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section
401 shall be held in trust and applied by it, in accordance with
the provisions of the Junior Subordinated Notes, and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company or an Affiliate acting as its own
Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and
interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
Junior Subordinated Notes of any series, means any one of the
following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any
administrative or governmental body or occasioned by the
operation of Article Thirteen):
(1) default in the payment of any interest upon any
Junior Subordinated Note of that series when it becomes due
and payable on an Interest Payment Date other than at
Maturity, including Additional Interest (as defined in
clause (ii) of the definition thereof) in respect thereof,
and continuance of such default for a period of ten (10)
days; provided, however, that (i) a valid extension of the
interest payment period by the Company pursuant to the terms
of a supplemental indenture authorizing the Junior
Subordinated Notes of that series shall not constitute a
default in the payment of interest for this purpose and (ii)
no such default shall be deemed to exist if, on or prior to
the date on which such interest became due, the Company
shall have made a payment sufficient to pay such interest
pursuant to the Guarantee related to the Trust Securities of
the Securities Trust owning such series of Junior
Subordinated Notes, and shall have delivered a notice to the
Trustee to that effect; or
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(2) default in payment of Additional Interest (as
defined in clause (i) of the definition thereof) and the
continuance of such default for a period of ten (10) days;
or
(3) default in the payment of the principal of, (or
premium, if any) or interest (including Additional Interest
as defined in clause (ii) of the definition thereof) on any
Junior Subordinated Note of that series at its Maturity;
provided, however, that no such default in the payment of
principal (or premium, if any) or interest (including
Additional Interest as defined in clause (ii) of the
definition thereof) shall be deemed to exist if, on or prior
to the date such principal (and premium, if any) or interest
(including Additional Interest as defined in clause (ii) of
the definition thereof) became due, the Company shall have
made a payment sufficient to pay such principal (and
premium, if any) or interest (including Additional Interest
as defined in clause (ii) of the definition thereof)
pursuant to the Guarantee related to the Trust Securities of
the Securities Trust owning such series of Junior
Subordinated Notes, and shall have delivered a notice to the
Trustee to that effect; or
(4) default in the deposit of any sinking fund
payment, when and as due by the terms of a Junior
Subordinated Note of that series and continuance of such
default for a period of 3 Business Days; or
(5) default in the performance or breach of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of
Junior Subordinated Notes other than that series), and
continuance of such default or breach for a period of 90
days after there has been given, by registered or certified
mail, to the Company by the Trustee, or to the Company and
the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Junior Subordinated Notes of that
series, 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
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition by one or more Persons other
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than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or
for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a
period of 90 consecutive days; or
(7) the commencement by the Company of a case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in a case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company 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 corporate
action by the Company in furtherance of any such action; or
(8) any other Event of Default provided with respect
to Junior Subordinated Notes of that series in the
supplemental indenture authorizing such series.
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default with respect to Junior Subordinated
Notes of any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Junior
Subordinated Notes of that series may declare the principal
amount (or such portion of the principal amount as may be
specified in the terms of that series) of all of the Junior
Subordinated Notes of that series to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately
due and payable.
At any time after such a declaration of acceleration with
respect to Junior Subordinated Notes of any series has been made
and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article
provided, the Holders of not less than a majority in principal
amount of the Outstanding Junior Subordinated Notes of that
series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest (including any
Additional Interest) on all Junior Subordinated Notes
of that series,
(B) the principal of (and premium, if any) any
Junior Subordinated Notes of that series which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in such Junior Subordinated Notes,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest (including
any Additional Interest) at the rate or rates
prescribed therefor in such Junior Subordinated Notes,
and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due to the Trustee
under Section 607; and
(2) all Events of Default with respect to Junior
Subordinated Notes of that series, other than the non-
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payment of the principal of Junior Subordinated Notes of
that series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if an Event of Default occurs
under Section 501(1), (2), (3) or (4) with respect to any Junior
Subordinated Notes the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Junior
Subordinated Notes, the whole amount then due and payable on such
Junior Subordinated Notes for principal (and premium, if any) and
interest (including Additional Interest, if any) and, to the
extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if
any) and on any overdue interest (including Additional Interest,
if any), at the rate or rates prescribed therefor in such Junior
Subordinated Notes, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due to the Trustee under Section
607.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the
Company or any other obligor upon such Junior Subordinated Notes
and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Junior Subordinated Notes, wherever
situated.
If an Event of Default with respect to Junior Subordinated
Notes of any series occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the
rights of the Holders of Junior Subordinated Notes of such series
by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
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In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company
or any other obligor upon the Junior Subordinated Notes or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Junior Subordinated Notes shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or
otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and
unpaid in respect of the Junior Subordinated Notes and to
file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due to the Trustee
under Section 607) and of the Holders of Junior Subordinated
Notes allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder of Junior
Subordinated Notes to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such
payments directly to the Holders of Junior Subordinated Notes, to
pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Holder of a Junior Subordinated Note any plan of
reorganization, arrangement, adjustment or composition affecting
the Junior Subordinated Notes or the rights of any Holder thereof
or to authorize the Trustee to vote in respect of the claim of
any Holder of a Junior Subordinated Note in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
JUNIOR SUBORDINATED NOTES.
All rights of action and claims under this Indenture or the
Junior Subordinated Notes may be prosecuted and enforced by the
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Trustee without the possession of any of the Junior Subordinated
Notes or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall
be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Junior Subordinated Notes
in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest,
upon presentation of the Junior Subordinated Notes, and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee
under Section 607; and
Second: Subject to Article Thirteen, to the payment of
the amounts then due and unpaid for principal of (and
premium, if any) and interest (including Additional
Interest, if any) on the Junior Subordinated Notes in
respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such
Junior Subordinated Notes for principal (and premium, if
any) and interest (including Additional Interest, if any),
respectively; and
Third: The balance, if any, to the Person or Persons
entitled thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Junior Subordinated Note of any series
shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
the Junior Subordinated Notes of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Junior Subordinated Notes series
shall have made written request to the Trustee to institute
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proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Junior Subordinated Notes of that series;
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 Indenture 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
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture but
subject to Article Thirteen, the Holder of any Junior
Subordinated Notes shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 305) interest (including
any Additional Interest) on such Junior Subordinated Note on the
due dates expressed in such Junior Subordinated Note (or, in the
case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Junior Subordinated Note
has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the
Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the Trustee
and the Holders of Junior Subordinated Notes shall be restored
severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been
instituted.
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SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Junior
Subordinated Notes in the last paragraph of Section 304, no right
or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Junior Subordinated Notes is intended to be
exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Junior Subordinated Note to exercise any right or remedy upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders of Junior
Subordinated Notes may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the
Holders of Junior Subordinated Notes.
SECTION 512. CONTROL BY HOLDERS OF JUNIOR SUBORDINATED NOTES.
The Holders of not less than a majority in principal amount
of the Outstanding Junior Subordinated Notes of any series shall
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with
respect to the Junior Subordinated Notes of such series, provided
that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and could not involve
the Trustee in personal liability in circumstances where
reasonable indemnity would not be adequate, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount
of the Outstanding Junior Subordinated Notes of any series may,
on behalf of the Holders of all the Junior Subordinated Notes of
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such series, waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest (including Additional Interest) on any
Junior Subordinated Note of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Junior
Subordinated Note of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Junior Subordinated Note by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not
apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Junior Subordinated Notes of
any series, or to any suit instituted by any Holder of any Junior
Subordinated Note for the enforcement of the payment of the
principal of (or premium, if any) or interest (including
Additional Interest) on any Junior Subordinated Note on or after
the Stated Maturity or Maturities expressed in such Junior
Subordinated Note (or, in the case of redemption, on or after the
Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
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that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default
with respect to Junior Subordinated Notes of any series,
(1) the Trustee undertakes to perform, with respect to
Junior Subordinated Notes of such series, such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may, with respect to Junior Subordinated Notes of
such series, conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Junior
Subordinated Notes of any series has occurred and is continuing,
the Trustee shall exercise, with respect to Junior Subordinated
Notes of such series, such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own wilful misconduct,
except that
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Junior
Subordinated Notes of any series relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with
respect to the Junior Subordinated Notes of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder
with respect to the Junior Subordinated Notes of any series, the
Trustee shall transmit by mail to all Holders of Junior
Subordinated Notes of such series entitled to receive reports
pursuant to Section 313(c) of the Trust Indenture Act, notice of
all defaults hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except
in the case of a default in the payment of the principal of (or
premium, if any) or interest (including Additional Interest) on
any Junior Subordinated Note of such series or in the payment of
any sinking fund installment with respect to Junior Subordinated
Notes of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders
of Junior Subordinated Notes of such series; and provided,
further, that in the case of any default of the character
specified in Section 501(5) with respect to Junior Subordinated
Notes of such series, no such notice to Holders shall be given
until at least 45 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which
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is, or after notice or lapse of time or both would become, an
Event of Default with respect to Junior Subordinated Notes of
such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order and a resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel 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;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
of Junior Subordinated Notes of any series pursuant to this
Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
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shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of
any Event of Default with respect to the Junior Subordinated
Notes of any series for which it is acting as Trustee unless
either (1) a Responsible Officer of the Trustee assigned to
the Corporate Trustee Administration Department and agency
group of the Trustee (or any successor division or
department of the Trustee) shall have actual knowledge of
the Event of Default or (2) written notice of such Event of
Default shall have been given to the Trustee by the Company,
any other obligor on such Junior Subordinated Notes or by
any Holder of such Junior Subordinated Notes.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OF ISSUANCE OF JUNIOR
SUBORDINATED NOTES.
The recitals contained herein and in the Junior Subordinated
Notes (except the Trustee's certificates of authentication) shall
be taken as the statements of the Company, and the Trustee or any
Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Junior
Subordinated Notes. The Trustee or any Authenticating Agent
shall not be accountable for the use or application by the
Company of Junior Subordinated Notes or the proceeds thereof.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Trust Securities and shall be entitled to rely on
the delivery to it of a written notice by a Person representing
himself to be a holder of a Trust Security to establish that such
Person is such a holder. The Trustee may conclusively rely on an
Officers' Certificate as evidence that the holders of the
necessary percentage of liquidation preference of Trust
Securities have taken any action contemplated hereunder and shall
have no duty to investigate the truth or accuracy of any
statement contained therein.
SECTION 605. MAY HOLD JUNIOR SUBORDINATED NOTES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee
of Junior Subordinated Notes and, subject to Sections 608 and
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613, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence, willful misconduct or bad faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence, willful misconduct or bad faith on its
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to
the Junior Subordinated Notes upon all property and funds held or
collected by the Trustee as such, except funds held in trust for
the payment of principal of, premium, if any, or interest, if
any, on particular Junior Subordinated Notes.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting
interest, within the meaning of the Trust Indenture Act, it
shall, within 90 days after ascertaining that it has such
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conflicting interest, either eliminate such conflicting interest
or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this
Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall
be a corporation organized and doing business under the laws of
the United States of America, any State thereof or the District
of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by federal or
state authority and qualified and eligible under this Article and
otherwise permitted by the Trust Indenture Act to act as Trustee
under an Indenture qualified under the Trust Indenture Act. If
such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital surplus as set forth
in its most recent report of condition so published, if at any
time the Trustee shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this
Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements
of Section 611.
(b) The Trustee may resign at any time with respect to the
Junior Subordinated Notes of one or more series by giving written
notice thereof to the Company. If the instrument of acceptance
by a successor Trustee required by Section 611 shall not have
been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Junior Subordinated Notes
of such series.
(c) The Trustee may be removed at any time with respect to
the Junior Subordinated Notes of any series by Act of the
Holders of a majority in principal amount of the Outstanding
Junior Subordinated Notes of such series delivered to the Trustee
and to the Company.
(d) If at any time:
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(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any
Holder of a Junior Subordinated Note who has been a Holder
of a Junior Subordinated Note for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution,
may remove the Trustee with respect to all Junior Subordinated
Notes, or (ii) subject to Section 514, any Holder of a Junior
Subordinated Note who has been a bona fide Holder of a Junior
Subordinated Note for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with
respect to all Junior Subordinated Notes and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Junior Subordinated
Notes of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with
respect to the Junior Subordinated Notes of that or those series
(it being understood that any such successor Trustee may be
appointed with respect to the Junior Subordinated Notes of one or
more or all of such series and that at any time there shall be
only one Trustee with respect to the Junior Subordinated Notes of
any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Junior
Subordinated Notes of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Junior Subordinated Notes of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611,
become the successor Trustee with respect to the Junior
Subordinated Notes of such series and to that extent supersede
the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Junior Subordinated Notes of any
series shall have been so appointed by the Company or the Holders
of Junior Subordinated Notes and accepted appointment in the
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manner required by Section 611, any Holder of a Junior
Subordinated Note who has been a bona fide Holder of a Junior
Subordinated Note of such series 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 Trustee with respect to the Junior Subordinated Notes
of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Junior
Subordinated Notes of any series and each appointment of a
successor Trustee with respect to the Junior Subordinated Notes
of any series by mailing written notice of such event by first-
class mail, postage prepaid, to all Holders of such series of
Junior Subordinated Notes as their names and addresses appear in
the Security Register.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Junior Subordinated Notes, every such
successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer
and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Junior Subordinated Notes of one or
more (but not all) series, the Company, the retiring Trustee and
each successor Trustee with respect to the Junior Subordinated
Notes of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Junior Subordinated Notes of that or those series
to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all
Junior Subordinated Notes, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Junior Subordinated Notes of that or those series as to which
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the retiring Trustee is not retiring shall continue to be vested
in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Junior Subordinated Notes of that or those series to which the
appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with
respect to the Junior Subordinated Notes of that or those series
to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Junior Subordinated Notes shall
have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such authentication and
deliver the Junior Subordinated Notes so authenticated with the
same effect as if such successor Trustee had itself authenticated
such Junior Subordinated Notes.
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SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Junior Subordinated
Notes), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against
the Company (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 Company (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 Trustee simultaneously with the
creation of the creditor relationship with the Company (or any
such obligor) arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or
obligation.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Junior Subordinated Notes remain
Outstanding the Trustee may appoint an Authenticating Agent or
Agents with respect to one or more series of Junior Subordinated
Notes that shall be authorized to act on behalf of the Trustee to
authenticate Junior Subordinated Notes of such series issued upon
exchange, registration of transfer or partial redemption thereof
or pursuant to Section 304, and Junior Subordinated Notes so
authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of
Junior Subordinated Notes by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by
an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as
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Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders
of Junior Subordinated Notes, if any, of the series with respect
to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this
Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for
such payments, subject to the provisions of Section 607.
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The provisions of Sections 306, 604 and 605 shall be
applicable to each Authenticating Agent.
If an appointment with respect to one or more series is made
pursuant to this Section, the Junior Subordinated Notes of such
series may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Junior Subordinated Notes of
the series designated therein referred to in the
within-mentioned Indenture.
As Trustee
By
As Authenticating Agent
By
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not later than June 1 and December
1, in each year, a list, in such form as the Trustee may
reasonably require, containing all the information in the
possession or control of the Company, or any of its Paying
Agents other than the Trustee, as to the names and addresses
of the Holders of Junior Subordinated Notes as of the
preceding May 15 or November 15, as the case may be, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of
any such request, a list of similar form and content as of
the most recent Regular Record Date;
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.
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(a) The Trustee shall comply with the obligations imposed
on it pursuant to Section 312 of the Trust Indenture Act.
(b) Every Holder of Junior Subordinated Notes, by receiving
and holding the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee nor any agent of either
of them shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders
of Junior Subordinated Notes in accordance with Section 312(b) of
the Trust Indenture Act, regardless of the source from which such
information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a
request made under Section 312(b) of the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing
with the first May 15 after the first issuance of Junior
Subordinated Notes pursuant to this Indenture, if required by
Section 313(a) of the Trust Indenture Act, the 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 immediately preceding May 15 and
the date of this Indenture.
(b) The Trustee shall transmit 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 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission,
copies of the annual reports and of the information,
documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) that the Company may be
required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934, as
amended; or, if the Company is not required to file
information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations
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prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a
security listed and registered on a national securities
exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time
to time by the Commission, such additional information,
documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture
as may be required from time to time by such rules and
regulations;
(3) transmit, within 30 days after the filing thereof
with the Trustee, to the Holders of Junior Subordinated
Notes, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by
the Company pursuant to paragraphs (1) and (2) of this
Section 704 as may be required by rules and regulations
prescribed from time to time by the Commission; and
(4) notify the Trustee when and as the Junior
Subordinated Notes of any series become admitted to trading
on any national securities exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge into any
other corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, unless
(1) in case the Company shall consolidate with or
merge into another corporation or convey, transfer or lease
its properties and assets substantially as an entirety to
any Person, the corporation formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under
the laws of the United States of America, any State thereof
or the District of Columbia and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due
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and punctual payment of the principal of (and premium, if
any) and interest (including Additional Interest) on all the
Junior Subordinated Notes and the performance of every
covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such
transactions, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease complies with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
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SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the
Company into any corporation or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this
Indenture with the same effect as if such successor corporation
had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture
and the Junior Subordinated Notes.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders of Junior Subordinated
Notes, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation
to the Company and the assumption by any such successor of
the covenants of the Company herein and in the Junior
Subordinated Notes; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Junior
Subordinated Notes (and if such covenants are to be for the
benefit of less than all series of Junior Subordinated
Notes, stating that such covenants are expressly being
included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture, to change or eliminate any restrictions on the
payment of principal (or premium, if any) on Junior
Subordinated Notes or to permit the issuance of Junior
Subordinated Notes in uncertificated form, provided any such
action shall not adversely affect the interests of the
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Holders of Junior Subordinated Notes of any series in any
material respect; or
(5) to change or eliminate any of the provisions of
this Indenture with respect to any series of Junior
Subordinated Notes theretofore unissued; or
(6) to secure the Junior Subordinated Notes; or
(7) to establish the form or terms of Junior
Subordinated Notes of any series as permitted by Sections
201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Junior Subordinated Notes of one or more series and to
add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any
other provision herein, or to make provisions with respect
to matters or questions arising under this indenture,
provided such action shall not adversely affect the
interests of the Holders of Junior Subordinated Notes of any
series or holders of outstanding Trust Securities in any
material respect; or
(10) subject to Section 903(a), to make any change in
Article Thirteen that would limit or terminate the benefits
available to any holder of Senior Indebtedness under such
Article; or
(11) to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to
effect the qualification of this Indenture under the Trust
Indenture Act or under any similar federal statute hereafter
enacted, and to add to this Indenture such other provisions
as may be expressly required by the Trust Indenture Act.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Junior Subordinated Notes
of each series affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of
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modifying in any manner the rights of the Holders of Junior
Subordinated Notes of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Junior Subordinated
Note affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Junior
Subordinated Note, or reduce the principal amount thereof or
the rate of interest (including Additional Interest) thereon
or any premium payable upon the redemption thereof, or
change the method of calculating the rate of interest
thereon, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Junior Subordinated Notes of any series, the
consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section 902,
Section 513 or Section 1008, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Junior
Subordinated Note affected thereby, provided, however, that
this clause shall not be deemed to require the consent of
any Holder of a Junior Subordinated Note with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section and Section 1008, or the deletion of
this proviso, in accordance with the requirements of
Sections 611(b) and 901(8), or
(4) modify the provisions of this Indenture with
respect to the subordination of the Junior Subordinated
Notes in a manner adverse to such Holder.
SECTION 903. GENERAL PROVISIONS REGARDING SUPPLEMENTAL
INDENTURE.
(a) A supplemental indenture entered into pursuant to
Section 901 or Section 902 may not make any change that adversely
affects the rights under Article Thirteen of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or any group or representative thereof authorized
to give a consent) consent to such change.
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(b) A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular series of Junior Subordinated Notes, or which modifies
the rights of the Holders of Junior Subordinated Notes of such
series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the
Holders of Junior Subordinated Notes of any other series.
(c) It shall not be necessary for any Act of Holders of
Junior Subordinated Notes under this Section to approve the
particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act or action shall approve the
substance thereof.
SECTION 904. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
SECTION 905. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Junior
Subordinated Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 906. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act.
SECTION 907. REFERENCE IN JUNIOR SUBORDINATED NOTES TO
SUPPLEMENTAL INDENTURES.
Junior Subordinated Notes of any series authenticated and
delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the
Company shall so determine, new Junior Subordinated Notes of any
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series so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Junior
Subordinated Notes of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
The Company covenants and agrees for the benefit of each
series of Junior Subordinated Notes that it will duly and
punctually pay the principal of (and premium, if any) and
interest, including Additional Interest (subject to the right of
the Company to extend an interest payment period pursuant to the
terms of a supplemental indenture authorizing the Junior
Subordinated Notes of that series), on the Junior Subordinated
Notes of that series in accordance with the terms of the Junior
Subordinated Notes and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company or its Affiliate will maintain an office or
agency where Junior Subordinated Notes of each series may be
presented or surrendered for payment, where Junior Subordinated
Notes of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the Junior Subordinated Notes of that
series and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time
the Company shall fail to maintain any such required office or
agency in respect of any series of Junior Subordinated Notes or
shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Junior Subordinated Notes of that
series may be made and notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive such
respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Junior Subordinated Notes of
one or more series may be presented or surrendered for any or all
such purposes and may from time to time rescind such
designations. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 1003. MONEY FOR JUNIOR SUBORDINATED NOTES PAYMENTS TO BE
HELD IN TRUST.
If the Company or one of its Affiliates shall at any time
act as its own Paying Agent with respect to any series of Junior
Subordinated Notes, it will, on or before each due date of the
principal of (and premium, if any) or interest (including
Additional Interest, if any) on any of the Junior Subordinated
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Notes of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest (including Additional
Interest, if any) so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents
for any series of Junior Subordinated Notes, it will, prior to
each due date of the principal of (and premium, if any) or
interest (including Additional Interest, if any) on any Junior
Subordinated Notes of that series, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or
interest (including Additional Interest, if any) so becoming due,
such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest (including
Additional Interest, if any), and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any series of
Junior Subordinated Notes other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest (including
Additional Interest, if any) on Junior Subordinated Notes of
that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Junior Subordinated
Notes of that series) in the making of any payment of
principal of (and premium, if any) or interest (including
Additional Interest, if any) on the Junior Subordinated
Notes of that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or
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such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of (and premium, if any) or interest (including
Additional Interest, if any) on any Junior Subordinated Note of
any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest (including Additional
Interest, if any) has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such
Junior Subordinated Note shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be
published once, in a newspaper of general circulation in New York
City notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. ADDITIONAL INTEREST.
If the Junior Subordinated Notes of a series provide for the
payment of Additional Interest (for purposes of this Section
1004, as defined in clause (i) of the definition thereof) to the
Holders of such Junior Subordinated Notes, then the Company shall
pay to each Holder of such Securities the Additional Interest as
provided therein.
Except as otherwise provided in or pursuant to this
Indenture, if the Junior Subordinated Notes of a series provide
for the payment of Additional Interest, at least 10 days prior to
the first Interest Payment Date with respect to that series of
Junior Subordinated Notes upon which such Additional Interest
shall be payable (or, if the Junior Subordinated Notes of that
series shall not bear interest prior to Maturity, the first day
on which a payment of principal and any premium is made), and at
least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officer's
Certificate, the Company will furnish the Trustee and the
Company's Paying Agents, if other than the Trustee or the
Company, with an Officers' Certificate stating the amount of the
Additional Interest payable per minimum authorized denomination
of such Junior Subordinated Notes (and, if such Additional
Interest is payable only with respect to particular Junior
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Subordinated Notes, then the names of the Holders of such Junior
Subordinated Notes).
SECTION 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its corporate existence and the rights (charter and
statutory) and franchises of the Company; provided, however, that
the Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company, and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1006. LIMITATIONS ON DIVIDEND AND CERTAIN OTHER
PAYMENTS.
The Company covenants, for the benefit of the Holders of
each series of Junior Subordinated Notes, that, subject to the
next succeeding sentence, (a) the Company shall not declare or
pay any dividend or make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock, and (b) the Company shall
not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities (including
guarantees) issued by the Company which rank pari passu with or
junior to the Junior Subordinated Notes, (a) if at such time the
Company shall have given notice of its election to extend an
interest payment period for such series of Junior Subordinated
Notes and such extension shall be continuing, (b) if at such time
the Company shall be in default with respect to its payment or
other obligations under the Guarantee with respect to the series
of Trust Securities, if any, related to such series of Junior
Subordinated Notes, or (c) if at such time an Event of Default
hereunder with respect to such series of Junior Subordinated
Notes shall have occurred and be continuing. The preceding
sentence, however, shall not restrict (i) any of the actions
described in the preceding sentence resulting from any
reclassification of the Company's capital stock or the exchange
or conversion of one class or series of the Company's capital
stock for another class or series of the Company's capital stock,
(ii) the declaration and payment of a dividend or distribution or
similar share purchase rights in the future, or (iii) the
purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or
exchanged. The Company covenants that it shall take all actions
necessary to ensure the compliance of its Subsidiaries with this
Section 1006.
SECTION 1007. STATEMENT AS TO COMPLIANCE.
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(a) The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year, a written statement,
which need not comply with Section 102, signed by the principal
executive officer, the principal financial officer or the
principal accounting officer of the Company, as to his or her
knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section
1007, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.
(b) The Company shall deliver to the Trustee, no later than
the Business Day on which the event occurs, written notice of the
liquidation, dissolution or winding-up of a Securities Trust if
such liquidation, dissolution or winding-up would occur earlier
than the Stated Maturity of the Junior Subordinated Notes owned
by such Securities Trust.
(c) The Company shall deliver to the Trustee, within five
days after the occurrence thereof, written notice of any event
which after notice or lapse of time or both would become an Event
of Default pursuant to Section 501.
SECTION 1008. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Sections 1005
and 1006 with respect to the Junior Subordinated Notes of any
series if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Junior
Subordinated Notes of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and
effect.
SECTION 1009. COVENANTS REGARDING TRUST.
For so long as the Trust Securities remain outstanding, the
Company covenants (i) to directly or indirectly maintain 100%
ownership of the Common Securities (as defined in the Trust
Agreement relating to such securities) of the Trust; provided,
however, that any permitted successor of the Company hereunder
may succeed to the Company's ownership of such Common Securities,
and (ii) to use its reasonable efforts to cause the Trust (a) to
remain a statutory business trust, except in connection with the
distribution of Junior Subordinated Notes to the holders of Trust
Securities in liquidation of the Trust, the redemption of all of
the Trust Securities of the Trust, or certain mergers,
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consolidations or amalgamations, each as permitted under the
Trust Agreement, and (b) to otherwise continue to be classified
as a grantor trust for United States federal income tax purposes.
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ARTICLE ELEVEN
REDEMPTION OF JUNIOR SUBORDINATED NOTES
SECTION 1101. APPLICABILITY OF ARTICLE.
Junior Subordinated Notes of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as
contemplated by Section 301 for Junior Subordinated Notes of any
series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Junior
Subordinated Notes shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company of all of
the Junior Subordinated Notes of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the
Trustee and the related Property Trustee), notify the Trustee and
the related Property Trustee in writing of such Redemption Date.
In case of any redemption at the election of the Company of less
than all the Junior Subordinated Notes of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the
Trustee and the related Property Trustee), notify the Trustee and
the related Property Trustee in writing of such Redemption Date
and of the principal amount of Junior Subordinated Notes of such
series to be redeemed. In the case of any redemption of Junior
Subordinated Notes (i) prior to the expiration of any restriction
on such redemption provided in the terms of such Junior
Subordinated Notes or elsewhere in this Indenture, or (ii)
pursuant to an election of the Company which is subject to a
condition specified in the terms of such Junior Subordinated
Notes, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or
condition.
SECTION 1103. SELECTION BY TRUSTEE OF JUNIOR SUBORDINATED NOTES
TO BE REDEEMED.
If the Junior Subordinated Notes are registered in the name
of only one Holder, any partial redemptions shall be pro rata.
If the Junior Subordinated Notes are held in definitive form by
more than one Holder and if less than all the Junior Subordinated
Notes of any series are to be redeemed, the particular Junior
Subordinated Notes to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from the
Outstanding Junior Subordinated Notes of such series not
previously called for redemption, by lot or other such method as
the Trustee shall deem fair and appropriate and which may provide
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for the selection for redemption of portions (equal to the
minimum authorized denomination for Junior Subordinated Notes of
that series or any integral multiple thereof) of the principal
amount of Junior Subordinated Notes of such series of a
denomination larger than the minimum authorized denomination for
Junior Subordinated Notes of that series.
The Trustee shall promptly notify the Company in writing of
the Junior Subordinated Notes selected for redemption and, in the
case of any Junior Subordinated Notes selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Junior Subordinated Notes shall relate, in the case of any Junior
Subordinated Notes redeemed or to be redeemed only in part, to
the portion of the principal amount of such Junior Subordinated
Notes which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided
in Section 106 to the Holders of Junior Subordinated Notes to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Junior
Subordinated Notes of any series are to be redeemed, the
identification (and, in the case of partial redemption, the
principal amounts) of the particular Junior Subordinated
Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Junior
Subordinated Note to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said
date,
(5) the place or places where such Junior Subordinated
Notes are to be surrendered for payment of the Redemption
Price, and
(6) that the redemption is for a sinking fund, if such
is the case.
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Notice of redemption of Junior Subordinated Notes to be
redeemed at the election of the Company shall be given by the
Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Except as otherwise provided in a supplemental indenture
pursuant to Section 301, prior to any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company or its Affiliate is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of and
accrued interest, if any, on all the Junior Subordinated Notes
which are to be redeemed on that date.
SECTION 1106. JUNIOR SUBORDINATED NOTES PAYABLE ON REDEMPTION
DATE.
Notice of redemption having been given as aforesaid, the
Junior Subordinated Notes so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price
therein specified together with any accrued interest (including
any Additional Interest) thereon, and from and after such date
(unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Junior Subordinated
Notes shall cease to bear interest. Upon surrender of any such
Junior Subordinated Note for redemption in accordance with such
notice, such Junior Subordinated Note shall be paid by the
Company at the Redemption Price, together with accrued interest,
if any, and any Additional Interest to the Redemption Date;
provided, however, that, except as otherwise provided in a
supplemental indenture pursuant to Section 301, installments of
interest on Junior Subordinated Notes whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders
of such Junior Subordinated Notes, or one or more Predecessor
Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions
of Section 305.
If any Junior Subordinated Note called for redemption shall
not be so paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the
Junior Subordinated Note.
SECTION 1107. JUNIOR SUBORDINATED NOTES REDEEMED IN PART.
Any Junior Subordinated Note that is to be redeemed
only in part shall be surrendered at an office or agency of the
Company therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer
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in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Junior
Subordinated Note without service charge, a new Junior
Subordinated Note of the same series, Stated Maturity and
original issue date of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the
Junior Subordinated Note so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Junior Subordinated Notes of a
series except as otherwise specified as contemplated by Section
301 for Junior Subordinated Notes of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Junior Subordinated Notes of any series is herein
referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the
terms of Junior Subordinated Notes of any series is herein
referred to as an "optional sinking fund payment". If provided
for by the terms of Junior Subordinated Notes of any series, the
cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Junior Subordinated Notes
of any series as provided for by the terms of Junior Subordinated
Notes of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH JUNIOR
SUBORDINATED NOTES.
The Company (1) may deliver Outstanding Junior Subordinated
Notes of a series (other than any previously called for
redemption), and (2) may apply as a credit Junior Subordinated
Notes of a series which have been redeemed either at the election
of the Company pursuant to the terms of such Junior Subordinated
Notes or through the application of permitted optional sinking
fund payments pursuant to the terms of such Junior Subordinated
Notes, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Junior Subordinated
Notes of such series required to be made pursuant to the terms of
such Junior Subordinated Notes as provided for by the terms of
such series; provided that such Junior Subordinated Notes have
not been previously so credited. Such Junior Subordinated Notes
shall be received and credited for such purpose by the Trustee at
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the Redemption Price specified in such Junior Subordinated Notes
for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF JUNIOR SUBORDINATED NOTES FOR
SINKING FUND.
Not less than 60 days prior to each sinking fund payment
date for any series of Junior Subordinated Notes, the Company
will deliver to the Trustee an Officers' Certificate specifying
the amount of the next ensuing sinking fund payment for that
series pursuant to the terms of that series, the portion thereof,
if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering
and crediting Junior Subordinated Notes of that series pursuant
to Section 1202 and stating the basis for such credit and that
such Junior Subordinated Notes have not previously been so
credited and will also deliver to the Trustee any Junior
Subordinated Notes to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall
select the Junior Subordinated Notes to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103
and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the
redemption of such Junior Subordinated Notes shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. JUNIOR SUBORDINATED NOTES SUBORDINATE TO SENIOR
INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a
Junior Subordinated Note, by his acceptance thereof, likewise
covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article (subject to Article Four),
the payment of the principal of, premium, if any, and interest
(including Additional Interest) on each and all of the Junior
Subordinated Notes are hereby expressly made subordinate and
subject in right of payment to the prior payment in full in cash
of all Senior Indebtedness.
SECTION 1302. PAYMENT OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any payment or distribution of assets of the Company to
creditors upon any liquidation, dissolution, winding-up,
reorganization, assignment for the benefit of creditors,
marshalling of assets or liabilities or any bankruptcy,
insolvency or similar proceedings of the Company (each such
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event, if any, referred to as a "Proceeding"), the holders of
Senior Indebtedness shall be entitled to receive payment in full
of all amounts due on or to become due on or in respect of all
Senior Indebtedness (including any interest accruing thereon
after the commencement of any such Proceeding, whether or not
allowed as a claim against the Company in such Proceeding),
before the Holders of the Junior Subordinated Notes are entitled
to receive any payment or distribution (excluding any payment
described in Section 1309) on account of the principal of,
premium, if any, or interest (including Additional Interest, if
any) on the Junior Subordinated Notes or on account of any
purchase, redemption or other acquisition of Junior Subordinated
Notes by the Company (all such payments, distributions,
purchases, redemptions and acquisitions, whether or not in
connection with a Proceeding, herein referred to, individually
and collectively, as a "Payment").
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing shall be received by the Trustee or the Holders of
the Junior Subordinated Notes before all Senior Indebtedness is
paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be
held in trust for the benefit of and shall be paid over or
delivered to the holders of Senior Indebtedness or to the trustee
or trustees under any indenture pursuant to which any instruments
evidencing any such Senior Indebtedness may have been issued, as
their respective interests may appear, as calculated by the
Company, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all
Senior Indebtedness in full in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for
the holders of such Senior Indebtedness.
For purposes of this Article, "assets of the Company" shall
not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any
other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to
the extent provided in this Article with respect to the Junior
Subordinated Notes to the payment of all Senior Indebtedness that
may at the time be outstanding, provided, however, that (i) the
Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii)
the rights of the holders of the Senior Indebtedness are not,
without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company
with, or the merger of the Company into, another corporation or
the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the
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terms and conditions provided for in Article Eight hereof shall
not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 1302 if such
other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in
Article Eight hereof. Nothing in Section 1303 or in this Section
1302 shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 607.
SECTION 1303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
No payment of any principal, including redemption payments
if any (premium, if any), or interest on (including Additional
Interest) the Junior Subordinated Notes shall be made if
(i) any Senior Indebtedness is not paid when due
whether at the stated maturity of any such payment or by
call for redemption and any applicable grace period with
respect to such default has ended, with such default
remaining uncured and such default has not been waived or
otherwise ceased to exist;
(ii) the maturity of any Senior Indebtedness has
been accelerated because of a default; or
(iii) notice has been given of the exercise of an
option to require repayment, mandatory payment or prepayment
or otherwise.
In the event that, notwithstanding the foregoing, the
Company shall make any Payment to the Trustee or any Holder
prohibited by the foregoing provisions of this Section, then in
such event such Payment shall be held in trust and paid over and
delivered forthwith to the holders of the Senior Indebtedness.
The provisions of this Section shall not apply to any
Payment with respect to which Section 1302 hereof would be
applicable.
SECTION 1304. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Junior Subordinated Notes shall
prevent the Company, at any time except during the pendency of
any Proceeding referred to in Section 1302 hereof or under the
conditions described in Section 1303 hereof, from making
Payments. Nothing in this Article shall have any effect on the
right of the Holders or the Trustee to accelerate the maturity of
the Junior Subordinated Notes upon the occurrence of an Event of
Default, but, in that event, no payment may be made in violation
of the provisions of this Article with respect to the Junior
Subordinated Notes. If payment of the Junior Subordinated Notes
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is accelerated because of an Event of Default, the Company shall
promptly notify the holders of the Senior Indebtedness (or their
representatives) of such acceleration.
SECTION 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS.
The rights of the Holders of the Junior Subordinated Notes
shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash,
property and securities applicable to the Senior Indebtedness
until the principal of, premium, if any, and interest (including
Additional Interest) on the Junior Subordinated Notes shall be
paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any
cash, property or securities to which the Holders of the Junior
Subordinated Notes or the Trustee would be entitled except for
the provisions of this Article, and no payments pursuant to the
provisions of this Article to the holders of Senior Indebtedness
by Holders of the Junior Subordinated Notes or the Trustee,
shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Junior Subordinated
Notes, be deemed to be a payment or distribution by the Company
to or on account of the Senior Indebtedness.
SECTION 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the Holders on
the one hand and the holders of Senior Indebtedness on the other
hand. Nothing contained in this Article or elsewhere in this
Indenture or in the Junior Subordinated Notes is intended to or
shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Junior
Subordinated Notes, the obligation of the Company, which is
absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness, is
intended to rank equally with all other general obligations of
the Company), to pay to the Holders of the Junior Subordinated
Notes the principal of, premium, if any, and interest (including
Additional Interest) on the Junior Subordinated Notes as and when
the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against the Company of
the Holders of the Junior Subordinated Notes and creditors of the
Company other than the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Junior Subordinated Note
from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Indebtedness to
receive cash, property and securities otherwise payable or
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deliverable to the Trustee or such Holder or, under the
conditions specified in Section 1303, to prevent any payment
prohibited by such Section or enforce their rights pursuant to
the penultimate paragraph in Section 1303.
SECTION 1307. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Junior Subordinated Note by his acceptance
thereof authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes, including, in
the event of any dissolution, winding-up, liquidation or
reorganization of the Company, whether in bankruptcy, insolvency,
receivership proceedings, or otherwise, the timely filing of a
claim for the unpaid balance of the indebtedness of the Company
owing to such Holder in the form required in such proceedings and
the causing of such claim to be approved.
SECTION 1308. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior
Indebtedness to enforce the subordination provisions provided
herein shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or by any
act or any failure to act, in good faith, by any such holder, or
by any noncompliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time
and from time to time, without the consent of or notice to the
Trustee or the Holders of the Junior Subordinated Notes, without
incurring responsibility to the Holders of the Junior
Subordinated Notes and without impairing or releasing the
subordination provided in this Article or the obligations
hereunder of the Holders of the Junior Subordinated Notes to the
holders of Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii)
permit the Company to borrow, repay and then reborrow any or all
of the Senior Indebtedness; (iii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iv) release any Person liable in
any manner for the collection of Senior Indebtedness; (v)
exercise or refrain from exercising any rights against the
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Company and any other Person; or (vi) apply any sums received by
them to Senior Indebtedness.
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SECTION 1309. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary,
payments from money held in trust by the Trustee under Article
Four for the payment of the principal of, premium, if any, and
interest (including Additional Interest) on any series of Junior
Subordinated Notes shall not be subordinated to the prior payment
of any Senior Indebtedness or subject to the restrictions set
forth in this Article and no Holder of such Junior Subordinated
Notes nor the Trustee shall be obligated to pay over such amount
to the Company, any holder of Senior Indebtedness (or a
designated representative of such holder) or any other creditor
of the Company.
SECTION 1310. NOTICE TO THE TRUSTEE.
The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the
Company that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Junior Subordinated Notes
pursuant to the provision of this Article. Notwithstanding the
provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any
payment of monies to or by the Trustee in respect of the Junior
Subordinated Notes pursuant to the provisions of this Article
unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of
the Trustee from the Company or a holder or holders of Senior
Indebtedness or from any trustee therefor; and before the receipt
of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this
Section 1310 at least two Business Days prior to the date upon
which, by the terms hereof, any money may become payable for any
purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any Junior
Subordinated Note), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the
purposes for which they were received, and shall not be affected
by any notice to the contrary that may be received by it within
two Business Days prior to such date.
The Trustee, subject to the provisions of Section 601, shall
be entitled to rely on the delivery to it of a written notice by
a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish
that such notice has been given by a holder of Senior
Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith
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that further evidence is required with respect to the right of
any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this
Article, and if such evidence is not furnished the Trustee may
defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the
provisions of Section 601 hereof, and the Holders of the Junior
Subordinated Notes shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which
such Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee
for the benefit of creditors, agent or other Person making such
payment or distribution, delivered to the Trustee or to the
Holders of Junior Subordinated Notes, for the purpose of
ascertaining the Persons entitled to participate in such payment
or distribution, the holders of the Senior Indebtedness, the
amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article, provided that the foregoing shall apply only if
such court has been apprised of the provisions of this Article.
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS.
Subject to the provisions of Section 601, the Trustee shall
not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders
of Junior Subordinated Notes or to the Company or to any other
Person cash, property or securities to which any holders of
Senior Indebtedness shall be entitled by virtue of this Article
or otherwise.
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any
Senior Indebtedness which may at any time be held by it, to the
same extent as any other holder of Senior Indebtedness, and
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nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607 hereof.
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee
(or the Company or an Affiliate of the Company) shall have been
appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the
context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee.
SECTION 1315. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS.
Each Holder by accepting a Junior Subordinated Note
acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness, whether
such Senior Indebtedness was created or acquired before or after
the issuance of the Junior Subordinated Notes, to acquire and
continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be
deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or to continue to
hold, such Senior Indebtedness.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 1401. NO RECOURSE AGAINST OTHERS.
An incorporator or any past, present or future director,
officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under
the Junior Subordinated Notes or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their
creation. By accepting a Junior Subordinated Note, each Holder
shall waive and release all such liability. Such waiver and
release shall be part of the consideration for the issue of the
Junior Subordinated Notes.
SECTION 1402. SET-OFF.
Notwithstanding anything to the contrary in this Indenture
or in any Junior Subordinated Note of any series, prior to the
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dissolution of any Securities Trust that has issued Trust
Securities related to a series of Junior Subordinated Notes, the
Company shall have the right to set-off and apply against any
payment it is otherwise required to make hereunder or thereunder
with respect to the principal of or interest (including any
Additional Interest) on the Junior Subordinated Notes of such
series with and to the extent the Company has theretofore made,
or is concurrently on the date of such payment making, a payment
with respect to the Trust Securities of the series related to
such series of Junior Subordinated Notes under the applicable
Guarantee. Contemporaneously with, or as promptly as practicable
after, any such payment under such Guarantee, the Company shall
deliver to the Trustee an Officers' Certificate (upon which the
Trustee shall be entitled to rely conclusively without any
requirement to investigate the facts contained therein) to the
effect that such payment has been made and that, as a result of
such payment, the corresponding payment under the related series
of Junior Subordinated Notes has been set-off in accordance with
this Section 1402.
SECTION 1403. ASSIGNMENT; BINDING EFFECT.
The Company shall have the right at all times to assign any
of its rights or obligations under this Indenture to a direct or
indirect wholly-owned subsidiary of the Company, provided that,
in the event of any such assignment, the Company shall remain
primarily liable for the performance of all such obligations.
This Indenture may also be assigned by the Company in connection
with a transaction described in Article Eight. This Indenture
shall be binding upon and inure to the benefit of the Company,
the Trustee, the Holders, any Security Registrar, Paying Agent,
and Authenticating Agent and, to the extent specifically set
forth herein, the holders of Senior Indebtedness and their
respective successors and assigns. The provisions of Section
1006 are for the benefit of the holders of the series of Trust
Securities referred to therein and, prior to the dissolution of
the related Securities Trust, may be enforced by such holders. A
holder of a Trust Security shall not have the right, as such a
holder, to enforce any other provision of this Indenture.
SECTION 1404. ADDITIONAL INTEREST.
Whenever there is mentioned in this Indenture, in any
context, the payment of the principal of, premium, if any, or
interest on, or in respect of, any Junior Subordinated Note of
any series, such mention shall be deemed to include mention of
the payment of Additional Interest provided for by the terms of
such series of Junior Subordinated Notes to the extent that, in
such context, Additional Interest is, were or would be payable in
respect thereof pursuant to such terms, and express mention of
the payment of Additional Interest in any provisions hereof shall
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not be construed as excluding Additional Interest in those
provisions hereof where such express mention is not made.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
ALABAMA POWER COMPANY
By
Art P. Beattie
Vice President, Treasurer
and Secretary
Attest:
Assistant Secretary
CHEMICAL BANK
Trustee
By
Vice President
Attest:
Senior Trust Officer
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STATE OF )
) SS.:
COUNTY OF )
On the ____ day of ______________, 1996, before me
personally came Art P. Beattie, to me known, who, being by me
duly sworn, did depose and say that he is a Vice President and
the Treasurer and Secretary of Alabama Power Company, one of the
corporations described herein and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
Notary Public
[SEAL]
My Commission Expires:
STATE OF NEW YORK )
) SS.:
CITY OF NEW YORK )
On the ____ day of ______________, 1996, before me
personally came ,
to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of Chemical Bank, one of the corporations
described herein and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and
that he signed his name thereto by like authority.
Notary Public
[SEAL]
My Commission Expires:
79
<PAGE>
Exhibit F
ALABAMA POWER COMPANY
TO
CHEMICAL BANK,
TRUSTEE.
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF JANUARY 1, 1996
$100,000,000
SERIES A 7.375% JUNIOR SUBORDINATED NOTES
DUE MARCH 31, 2026
<PAGE>
<PAGE>
TABLE OF CONTENTS1
PAGE
ARTICLE 1
Series A Junior Subordinated Notes . . . . . 1
SECTION 101. Establishment . . . . . . . . . . . . . . . . 1
SECTION 102. Definitions . . . . . . . . . . . . . . . . . 2
SECTION 103. Payment of Principal and Interest . . . . . . 3
SECTION 104. Deferral of Interest Payments . . . . . . . . 4
SECTION 105. Denominations . . . . . . . . . . . . . . . . 5
SECTION 106. Global Securities . . . . . . . . . . . . . . 5
SECTION 107. Transfer . . . . . . . . . . . . . . . . . . . 6
SECTION 108. Redemption . . . . . . . . . . . . . . . . . . 6
ARTICLE 2
Miscellaneous Provisions . . . . . . . . 7
SECTION 201. Recitals by Company . . . . . . . . . . . . . 7
SECTION 202. Ratification and Incorporation of Original
Indenture . . . . . . . . . . . . . . . . . . 7
SECTION 203. Executed in Counterparts . . . . . . . . . . . 8
SECTION 204. Listing of Notes . . . . . . . . . . . . . . . 8
1This Table of Contents does not constitute part of the
Indenture or have any bearing upon the interpretation of any of
its terms and provisions.
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THIS FIRST SUPPLEMENTAL INDENTURE is made as of the 1st
day of January, 1996, by and between ALABAMA POWER COMPANY, an
Alabama corporation, 600 North 18th Street, Birmingham,
Alabama 35291 (the "Company"), and CHEMICAL BANK, a New York
banking corporation, 450 West 33rd Street, New York, New
York 10001 (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a
Subordinated Note Indenture, dated as of January 1, 1996 (the
"Original Indenture") with Chemical Bank;
WHEREAS, the Original Indenture is incorporated herein
by this reference and the Original Indenture, as supplemented by
this First Supplemental Indenture, is herein called the
"Indenture";
WHEREAS, under the Original Indenture, a new series of
Junior Subordinated Notes may at any time be established by the
Board of Directors of the Company in accordance with the
provisions of the Original Indenture and the terms of such series
may be described by a supplemental indenture executed by the
Company and the Trustee;
WHEREAS, the Company proposes to create under the
Indenture a new series of Junior Subordinated Notes;
WHEREAS, additional Junior Subordinated Notes of other
series hereafter established, except as may be limited in the
Original Indenture as at the time supplemented and modified, may
be issued from time to time pursuant to the Indenture as at the
time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the
execution, delivery and recording of this First Supplemental
Indenture and to make it a valid and binding obligation of the
Company have been done or performed.
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,
the parties hereto hereby agree as follows:
ARTICLE 1
Series A Junior Subordinated Notes
SECTION 101. Establishment. There is hereby established a
new series of Junior Subordinated Notes to be issued under the
Indenture, to be designated as the Company's Series A 7.375%
Junior Subordinated Notes, due March 31, 2026 (the "Series A
Notes").
<PAGE>
There are to be authenticated and delivered $100,000,000
principal amount of Series A Notes, and no further Series A Notes
shall be authenticated and delivered except as provided by
Sections 203, 303, 304, 907 or 1107 of the Original Indenture.
The Series A Notes shall be issued in definitive fully registered
form.
The Series A Notes shall be in substantially the form set
out in Exhibit A hereto. The entire principal amount of the
Series A Notes shall initially be evidenced by one certificate
issued to the Property Trustee of Alabama Power Capital Trust I.
The form of the Trustee's Certificate of Authentication for
the Series A Notes shall be in substantially the form set forth
in Exhibit B hereto.
Each Series A Note shall be dated the date of authentication
thereof and shall bear interest from the date of original
issuance thereof or from the most recent Interest Payment Date to
which interest has been paid or duly provided for.
SECTION 102. Definitions. The following defined terms
used herein shall, unless the context otherwise requires, have
the meanings specified below. Capitalized terms used herein for
which no definition is provided herein shall have the meanings
set forth in the Original Indenture.
"Deferred Interest" means each installment of interest not
paid during any Extension Period, and interest thereon. Deferred
installments of interest shall bear interest at the rate of
7.375% per annum from the applicable Interest Payment Date to the
date of payment, compounded quarterly.
"Extension Period" means any period during which the Company
has elected to defer payments of interest, which deferral may be
for a period of up to twenty (20) consecutive quarters.
"Interest Payment Dates" means March 31, June 30, September
30 and December 31 of each year.
"Investment Company Act Event" means that the Company shall
have received an Opinion of Counsel to the effect that, as a
result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk
that the Securities Trust is or will be considered an "investment
company" that is required to be registered under the Investment
Company Act of 1940, as amended, which change becomes effective
on or after the Issue Date.
"Original Issue Date" means January 24, 1996.
2
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"Regular Record Date" means, with respect to each Interest
Payment Date, the close of business on the 15th calendar day
preceding such Interest Payment Date.
"Securities Trust" means Alabama Power Capital Trust I, a
statutory business trust formed by the Company under Delaware law
to issue Trust Securities, the proceeds of which will be used to
purchase Series A Notes.
"Special Event" means an Investment Company Act Event or Tax
Event.
"Stated Maturity" means March 31, 2026.
"Tax Event" means that the Company shall have received an
Opinion of Counsel experienced in such matters to the effect
that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, laws (or any regulation
thereunder) of the United States or any political subdivision or
taxing authority thereof or therein or (b) any amendment to, or
change in, an interpretation or application of such laws or
regulations, there is more than an insubstantial risk that (i)
the related Securities Trust would be subject to United States
federal income tax with respect to income accrued or received on
the Series A Notes, (ii) interest payable to the related
Securities Trust on the Series A Notes would not be deductible by
the Company for United States federal income tax purposes, or
(iii) the related Securities Trust would be subject to more than
a de minimis amount of other taxes, duties or other governmental
charges, which change or amendment becomes effective on or after
the Original Issue Date.
SECTION 103. Payment of Principal and Interest. The
unpaid principal amount of the Series A Notes shall bear interest
at the rate of 7.375% per annum until paid or duly provided for.
Interest shall be paid quarterly in arrears on each Interest
Payment Date to the Person in whose name the Series A Notes are
registered on the Regular Record Date for such Interest Payment
Date, provided that interest payable at the Stated Maturity of
principal or on a Redemption Date as provided herein will be paid
to the Person to whom principal is payable. So long as an
Extension Period is not occurring, any such interest that is not
so punctually paid or duly provided for will forthwith cease to
be payable to the Holders on such Regular Record Date and may
either be paid to the Person or Persons in whose name the Series
A Notes are registered at the close of business on a Special
Record Date for the payment of such defaulted interest to be
fixed by the Trustee ("Special Record Date"), notice whereof
shall be given to Holders of the Series A Notes not less than ten
(10) days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the
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requirements of any securities exchange, if any, on which the
Series A Notes shall be listed, and upon such notice as may be
required by any such exchange, all as more fully provided in the
Original Indenture.
Payments of interest on the Series A Notes will include
interest accrued to but excluding the respective Interest Payment
Dates. Interest payments for the Series A Notes shall be
computed and paid on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable
on the Series A Notes is not a Business Day, then a payment of
the interest payable on such date will be made on the next
succeeding day that is a Business Day, except that, if such
Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on the
date the payment was originally payable.
Payment of the principal and interest (including Additional
Interest, if any) due at the Stated Maturity or earlier
redemption of the Series A Notes shall be made upon surrender of
the Series A Notes at the Corporate Trust Office of the Trustee,
in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and
private debts. Payments of interest (including interest on any
Interest Payment Date) will be made, subject to such surrender
where applicable, at the option of the Company, (i) by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire
transfer at such place and to such account at a banking
institution in the United States as may be designated in writing
to the Trustee at least sixteen (16) days prior to the date for
payment by the Person entitled thereto.
The Company shall pay, as additional interest on the Series
A Notes, when due to the United States or any other taxing
authority, the amounts set forth in clause (i) of the definition
of Additional Interest.
SECTION 104. Deferral of Interest Payments. The Company
has the right at any time and from time to time to extend the
interest payment period of the Series A Notes for up to twenty
(20) consecutive quarters (each, an "Extension Period"), but not
beyond the Stated Maturity. Notwithstanding the foregoing, the
Company has no right to extend its obligation to pay such amounts
as are defined in clause (i) of the definition of Additional
Interest. Prior to the termination of any such Extension Period,
the Company may further extend the interest payment period,
provided that such Extension Period, together with all such
previous and further extensions of that Extension Period, shall
not exceed twenty (20) consecutive quarters. Upon the
termination of any such Extension Period and upon the payment of
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<PAGE>
all accrued and unpaid interest and any Additional Interest then
due, the Company may select a new Extension Period, subject to
the above limitations and requirements.
Upon the termination of any Extension Period, which
termination shall be on an Interest Payment Date, the Company
shall pay all Deferred Interest on the next succeeding Interest
Payment Date to the Person in whose name the Series A Notes are
registered on the Regular Record Date for such Interest Payment
Date, provided that Deferred Interest payable at Stated Maturity
or on any Redemption Date will be paid to the Person to whom
principal is payable.
If the Company shall have given notice of its election to
select any Extension Period, the Company shall not (i) declare or
pay any dividend or distribution on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of its capital
stock, or make any guarantee payments with respect to the
foregoing and (ii) make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees) issued by the Company that rank
pari passu with or junior to the Series A Notes.
The Company shall give the Holder or Holders of the Series A
Notes and the Trustee notice, as provided in Sections 105 and
106, respectively, of the Original Indenture, of its selection or
extension of an Extension Period at least one Business Day prior
to the earlier of (i) the Regular Record Date relating to the
Interest Payment Date on which the Extension Period is to
commence or relating to the Interest Payment Date on which an
Extension Period that is being extended would otherwise
terminate, or (ii) the date the Company or Securities Trust is
required to give notice to the New York Stock Exchange or other
applicable self-regulatory organization of the record date or the
date such distributions are payable. The Company shall cause the
Securities Trust to give notice of the Company's selection of
such Extension Period to Holders of the Trust Securities. The
month in which any notice is given pursuant to the immediately
preceding sentence of this Section shall constitute the first
month of the first quarter of the twenty (20) quarters, which
comprise the Maximum Extension Period.
At any time any of the foregoing notices are given to the
Trustee, the Company shall give to the Paying Agent for the
Series A Notes such information as said Paying Agent shall
reasonably require in order to fulfill its tax reporting
obligations with respect to such Series A Notes.
SECTION 105. Denominations. The Series A Notes may be
issued in the denominations of $25, or any integral multiple
thereof.
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SECTION 106. Global Securities. If the Series A Notes are
distributed to Holders of the Trust Securities of the Securities
Trust in liquidation of such Holders' interests therein, the
Series A Notes will be issued in the form of one or more Global
Securities registered in the name of the Depositary (which shall
be The Depository Trust Company) or its nominee. Except under
the limited circumstances described below, Series A Notes
represented by the Global Security will not be exchangeable for,
and will not otherwise be issuable as, Series A Notes in
definitive form. The Global Securities described above may not
be transferred except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or to a successor Depositary or
its nominee.
Owners of beneficial interests in such a Global Security
will not be considered the Holders thereof for any purpose under
the Indenture, and no Global Security representing a Series A
Note shall be exchangeable, except for another Global Security of
like denomination and tenor to be registered in the name of the
Depositary or its nominee or to a successor Depositary or its
nominee. The rights of Holders of such Global Security shall be
exercised only through the Depositary.
A Global Security shall be exchangeable for Series A Notes
registered in the names of persons other than the Depositary or
its nominee only if (i) the Depositary notifies the Company that
it is unwilling or unable to continue as a Depositary for such
Global Security and no successor Depositary shall have been
appointed, or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of
1934, as amended, at a time when the Depositary is required to be
so registered to act as such Depositary and no successor
Depositary shall have been appointed, (ii) the Company in its
sole discretion determines that such Global Security shall be so
exchangeable, or (iii) there shall have occurred an Event of
Default with respect to the Series A Notes. Any Global Security
that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Series A Notes registered in such names as the
Depositary shall direct.
SECTION 107. Transfer. No service charge will be made for
any transfer or exchange of Series A Notes, but payment will be
required of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
The Company shall not be required (a) to issue, transfer or
exchange any Series A Notes during a period beginning at the
opening of business fifteen (15) days before the day of the
mailing of a notice identifying the serial numbers of the Series
A Notes to be called for redemption, and ending at the close of
business on the day of the mailing, or (b) to transfer or
6
<PAGE>
exchange any Series A Notes theretofore selected for redemption
in whole or in part, except the unredeemed portion of any Series
A Note redeemed in part.
SECTION 108. Redemption. The Series A Notes shall be
subject to redemption at the option of the Company, in whole or
in part, without premium or penalty, at any time or from time to
time on or after March 31, 2001, at a Redemption Price equal to
100% of the principal amount to be redeemed plus accrued but
unpaid interest, including Additional Interest, if any, to the
Redemption Date; provided, however, that if a redemption in part
shall result in the delisting of the Preferred Securities issued
by the Securities Trust, the Company may only redeem the Series A
Notes in whole. In addition, upon occurrence of a Special Event,
the Company may, within ninety (90) days following the occurrence
thereof and subject to the terms and conditions of the Indenture,
elect to redeem the Series A Notes, in whole, at a price equal to
100% of the principal amount to be redeemed plus any accrued but
unpaid interest (including Additional Interest) to the Redemption
Date; provided, however, that if at the time of the occurrence of
the Special Event, there is available to the Company or the
Securities Trust the opportunity to eliminate, within such 90-day
period, the Special Event by taking some ministerial action, such
as filing a form or making an election, or pursuing some other
similar reasonable measure, which would have no adverse effect on
the Securities Trust, the Company or the Holders of such Trust
Securities, the Company or the Securities Trust, as the case may
be, will pursue such measure in lieu of redemption.
In the event of redemption of the Series A Notes in part
only, a new Series A Note or Notes for the unredeemed portion
will be issued in the name or names of the Holders thereof upon
the surrender thereof.
The Series A Notes will not have a sinking fund.
Notice of redemption shall be given as provided in Section
1104 of the Original Indenture.
Any redemption of less than all of the Series A Notes shall,
with respect to the principal thereof, be divisible by $25.
ARTICLE 2
Miscellaneous Provisions
SECTION 201. Recitals by Company. The recitals in this
First Supplemental Indenture are made by the Company only and not
by the Trustee, and all of the provisions contained in the
Original Indenture in respect of the rights, privileges,
immunities, powers and duties of the Trustee shall be applicable
7
<PAGE>
in respect of Series A Notes and of this First Supplemental
Indenture as fully and with like effect as if set forth herein in
full.
SECTION 202. Ratification and Incorporation of Original
Indenture. As supplemented hereby, the Original Indenture is in
all respects ratified and confirmed, and the Original Indenture,
as heretofore supplemented and modified, and this First
Supplemental Indenture shall be read, taken and construed as one
and the same instrument.
SECTION 203. Executed in Counterparts. This First
Supplemental Indenture may be simultaneously executed in several
counterparts, each of which shall be deemed to be an original,
and such counterparts shall together constitute but one and the
same instrument.
SECTION 204. Listing of Notes. If the Series A Notes are
to be issued as a Global Security in connection with the
distribution of the Series A Notes to the Holders of the
Preferred Securities issued by the Securities Trust, the Company
will use its best efforts to list such Series A Notes on the New
York Stock Exchange or any such other exchange on which such
Preferred Securities are then listed and traded.
IN WITNESS WHEREOF, each party hereto has caused this
instrument to be signed in its name and behalf by its duly
authorized officers, all as of the day and year first above
written.
ATTEST: ALABAMA POWER COMPANY
By: By:
Secretary Assistant Treasurer
CHEMICAL BANK
By: By:
Senior Trust Officer Vice President
8
<PAGE>
EXHIBIT A
FORM OF SERIES A NOTE
9
<PAGE>
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned
Indenture.
CHEMICAL BANK,
as Trustee
By:
Authorized Officer
10
<PAGE>
Exhibit G
GUARANTEE AGREEMENT
Between
Alabama Power Company
(as Guarantor)
and
Chemical Bank
(as Trustee)
dated as of
January 1, 1996
<PAGE>
CROSS-REFERENCE TABLE1
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . 4.01(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . 4.01(c), 2.08
310(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
314(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
314(d) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . 1.01, 2.05, 3.02
314(f) . . . . . . . . . . . . . . . . . . . . . . . 2.01, 3.02
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.07
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.01
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(e) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
316(a) . . . . . . . . . . . . . . . . . . . . . . 5.04(i), 2.06
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
317(a) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(a)
1This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
i
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . 1
ARTICLE II
TRUST INDENTURE ACT . . . . . . . . . 4
SECTION 2.01. Trust Indenture Act; Application . . . . . . . 4
SECTION 2.02. Lists of Holders of Securities . . . . . . . . 4
SECTION 2.03. Reports by the Trustee . . . . . . . . . . . . 4
SECTION 2.04. Periodic Reports to Trustee . . . . . . . . . 4
SECTION 2.05. Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . 5
SECTION 2.06. Events of Default; Waiver . . . . . . . . . . 5
SECTION 2.07. Event of Default; Notice . . . . . . . . . . . 5
SECTION 2.08. Conflicting Interests . . . . . . . . . . . . 5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE . . . . . 5
SECTION 3.01. Powers and Duties of the Trustee . . . . . . . 5
SECTION 3.02. Certain Rights of Trustee . . . . . . . . . . 7
SECTION 3.03. Compensation; Fees; Indemnity . . . . . . . . 9
ARTICLE IV
TRUSTEE . . . . . . . . . . . . 9
SECTION 4.01. Trustee; Eligibility . . . . . . . . . . . . . 9
SECTION 4.02. Appointment, Removal and Resignation of
Trustee . . . . . . . . . . . . . . . . . . . 10
ii
<PAGE>
ARTICLE V
GUARANTEE . . . . . . . . . . . . 11
SECTION 5.01. Guarantee . . . . . . . . . . . . . . . . . . 11
SECTION 5.02. Waiver of Notice and Demand . . . . . . . . . 11
SECTION 5.03. Obligations Not Affected . . . . . . . . . . . 11
SECTION 5.04. Rights of Holders . . . . . . . . . . . . . . 12
SECTION 5.05. Guarantee of Payment . . . . . . . . . . . . . 13
SECTION 5.06. Subrogation . . . . . . . . . . . . . . . . . 13
SECTION 5.07. Independent Obligations . . . . . . . . . . . 13
ARTICLE VI
SUBORDINATION . . . . . . . . . . . 13
SECTION 6.01. Subordination . . . . . . . . . . . . . . . . 13
ARTICLE VII
TERMINATION . . . . . . . . . . . 13
SECTION 7.01. Termination . . . . . . . . . . . . . . . . . 13
ARTICLE VIII
MISCELLANEOUS . . . . . . . . . . . 14
SECTION 8.01. Successors and Assigns . . . . . . . . . . . . 14
SECTION 8.02. Amendments . . . . . . . . . . . . . . . . . . 14
SECTION 8.03. Notices . . . . . . . . . . . . . . . . . . . 14
SECTION 8.04. Benefit . . . . . . . . . . . . . . . . . . . 15
SECTION 8.05. Interpretation . . . . . . . . . . . . . . . . 15
SECTION 8.06. Governing Law . . . . . . . . . . . . . . . . 16
iii
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as
of January 1, 1996, is executed and delivered by ALABAMA POWER
COMPANY, an Alabama corporation (the "Guarantor"), and CHEMICAL
BANK, a New York banking corporation, as trustee (the "Trustee"),
for the benefit of the Holders (as defined herein) from time to
time of the Preferred Securities (as defined herein) of ALABAMA
POWER CAPITAL TRUST I, a Delaware statutory business trust (the
"Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of January 1, 1996 among the
Trustee, the other Trustees named therein, and Alabama Power
Company, as Depositor, the Trust is issuing as of the date hereof
$97,000,000 aggregate liquidation amount of its 7.375% Trust
Preferred Securities (the "Preferred Securities") representing
ownership interests in the Trust and having the terms set forth
in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the
Trust and the proceeds thereof will be used to purchase the
Junior Subordinated Notes (as defined in the Trust Agreement) of
the Guarantor, which will be held by the Trust as trust assets;
and
WHEREAS, as incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires to irrevocably and
unconditionally agree, to the extent set forth herein, to pay to
the Holders the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the payment for
Preferred Securities by each Holder thereof, which payment the
Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time of the Preferred
Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Guarantee
Agreement, the terms set forth below shall, unless the context
otherwise requires, have the following meanings. Capitalized or
otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust
Agreement as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
<PAGE>
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Common Securities" means the securities representing common
ownership interests in the assets of the Trust.
"Event of Default" means a failure by the Guarantor to
perform any of its payment obligations under this Guarantee
Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred
Securities, to the extent not paid or made by or on behalf of the
Trust: (i) any accrued and unpaid distributions that are
required to be paid on such Preferred Securities but if and only
to the extent the Trust has funds legally and immediately
available therefor to make such payment; (ii) the redemption
price, including all accrued and unpaid distributions to the date
of redemption (the "Redemption Price"), with respect to the
Preferred Securities called for redemption by the Trust but if
and only to the extent that the Trust has funds legally and
immediately available therefor sufficient to make such payment;
and (iii) upon a voluntary or involuntary dissolution, winding-up
or termination of the Trust (other than in connection with the
distribution of Junior Subordinated Notes to the holders of Trust
Securities or the redemption of all of the Preferred Securities),
the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid distributions on the Preferred Securities to
the date of payment, to the extent the Trust has funds legally
and immediately available therefor, and (b) the amount of assets
of the Trust remaining available for distribution to Holders in
liquidation of the Trust (in either case, the "Liquidation
Distribution").
"Holder" shall mean any holder, as registered on the books
and records of the Trust, of any Preferred Securities; provided,
however, that in determining whether the holders of the requisite
percentage of Preferred Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include
the Guarantor or any Affiliate of the Guarantor.
"Indenture" means the Subordinated Note Indenture dated as
of January 1, 1996, among the Guarantor, as Subordinated Note
Issuer, and Chemical Bank, as trustee, as supplemented by the
Supplemental Indenture dated as of January 1, 1996, by and
between the Guarantor and Chemical Bank, as Trustee.
2
<PAGE>
"Majority in liquidation amount of Preferred Securities"
means a vote by Holder(s) of Preferred Securities, voting
separately as a class, of more than 50% of the liquidation amount
of all Preferred Securities outstanding at the time of
determination.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Guarantor, and delivered to the
Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Person" means any individual, corporation, partnership,
joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the Trustee,
any vice president, any assistant vice president, the secretary,
any assistant secretary, the treasurer, any assistant treasurer,
any senior trust officer, trust officer or assistant trust
officer or any other officer of the Corporate Trust Department of
the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Trustee" means a successor Trustee possessing the
qualifications to act as Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
3
<PAGE>
"Trustee" means Chemical Bank until a Successor Trustee has
been appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement and thereafter means each such
Successor Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions
of the Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions; and
(b) If and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Section 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 2.02. Lists of Holders of Securities.
(a) The Guarantor shall furnish or cause to be furnished to
the Trustee (a) semiannually, not later than June 1 and December
1 in each year, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders
("List of Holders") as of a date not more than 15 days prior to
the time such list is furnished, and (b) at such other times as
the Trustee may request in writing, within 30 days after the
receipt by the Guarantor of any such request, a List of Holders
as of a date not more than 15 days prior to the time such list is
furnished; provided that, the Guarantor shall not be obligated to
provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders given to the
Trustee by the Guarantor. The Trustee may destroy any List of
Holders previously given to it on receipt of a new List of
Holders.
(b) The Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Trustee. Within 60 days after
May 15 of each year, the Trustee shall provide to the Holders of
the Preferred Securities such reports as are required by Section
313(a) of the Trust Indenture Act, if any, in the form and in the
manner provided by Section 313 of the Trust Indenture Act. The
Trustee shall also comply with the other requirements of Section
313 of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Trustee. The Guarantor
shall provide to the Trustee such documents, reports and
4
<PAGE>
information as required by Section 314 (if any) in the form, in
the manner and at the times required by Section 314 of the Trust
Indenture Act, and shall provide, within 120 days after the end
of the Guarantor's fiscal year, the compliance certificate
required by Section 314(a)(4) of the Trust Indenture Act in the
form and in the manner required by such Section.
SECTION 2.05. Evidence of Compliance with Conditions
Precedent. The Guarantor shall provide to the Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Guarantee Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
SECTION 2.06. Events of Default; Waiver. The Holders of a
Majority in liquidation amount of Preferred Securities may, by
vote, on behalf of all of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose
of this Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.07. Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default known
to the Trustee, unless such defaults have been cured before the
giving of such notice, provided that the Trustee shall be
protected in withholding such notice if and so long as the board
of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Trustee shall not be deemed to have knowledge of
any Event of Default unless the Trustee shall have received
written notice, or a Responsible Officer charged with the
administration of the Trust Agreement shall have obtained written
notice, of such Event of Default.
SECTION 2.08. Conflicting Interests. The Trust Agreement
shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
5
<PAGE>
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01. Powers and Duties of the Trustee.
(a) This Guarantee Agreement shall be held by the Trustee
for the benefit of the Holders, and the Trustee shall not
transfer this Guarantee Agreement to any Person except the
Trustee shall assign rights hereunder to a Holder to the extent
such assignment is necessary to exercise such Holder's rights
pursuant to Section 5.04 or to a Successor Trustee upon
acceptance by such Successor Trustee of its appointment to act as
Successor Trustee. The right, title and interest of the Trustee
shall automatically vest in any Successor Trustee, and such
vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Trustee.
(b) If an Event of Default has occurred and is continuing,
the Trustee shall enforce this Guarantee Agreement for the
benefit of the Holders.
(c) The Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default
that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Guarantee Agreement,
and no implied covenants shall be read into this Guarantee
Agreement against the Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section
2.06), the Trustee shall exercise such of the rights and powers
vested in it by this Guarantee Agreement, and use the same degree
of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such Events
of Default that may have occurred:
(A) the duties and obligations of the Trustee
shall be determined solely by the express provisions of
this Guarantee Agreement, and the Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this
Guarantee Agreement; and
(B) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to
6
<PAGE>
the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Guarantee Agreement; but in the
case of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not
they conform to the requirements of this Guarantee
Agreement;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of
the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts upon which
such judgment was made;
(iii) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a
Majority in liquidation amount of the Preferred Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if the Trustee shall have
reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the
terms of this Guarantee Agreement or adequate indemnity
against such risk or liability is not reasonably assured to
it.
SECTION 3.02. Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties;
7
<PAGE>
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever, in the administration of this
Guarantee Agreement, the Trustee shall deem it desirable
that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Trustee
(unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor;
(iv) the Trustee may consult with counsel of its
choice, and the written advice or opinion of such counsel
with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion; such counsel may be
counsel to the Guarantor or any of its Affiliates and may
include any of its employees; the Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of
competent jurisdiction;
(v) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any
Holder, unless such Holder shall have provided to the
Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the Trustee,
against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Trustee;
provided that nothing contained in this Section 3.02(a)(v)
shall be taken to relieve the Trustee, upon the occurrence
of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee Agreement;
(vi) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit;
(vii) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys, and the
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Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(viii) whenever in the administration of this
Guarantee Agreement the Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Trustee (i)
may request instructions from the Holders, (ii) may refrain
from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the
Trustee shall be construed to be a duty.
SECTION 3.03. Compensation; Fees; Indemnity.
The Guarantor agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder
(which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Guarantee Agreement
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold the Trustee
harmless against, any and all loss, damage, claims, liability or
expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of this Guarantee Agreement, including the costs
and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder.
The provisions of this Section 3.03 shall survive the termination
of this Guarantee Agreement.
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ARTICLE IV
TRUSTEE
SECTION 4.01. Trustee; Eligibility.
(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section
4.01(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition
so published.
(b) If at any time the Trustee shall cease to be eligible
to so act under Section 4.01(a), the Trustee shall immediately
resign in the manner and with the effect set out in Section
4.02(c).
(c) If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust
Indenture Act, subject to the rights of the Trustee under the
penultimate paragraph thereof.
SECTION 4.02. Appointment, Removal and Resignation of
Trustee.
(a) Subject to Section 4.02(b), the Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Trustee shall not be removed until a Successor
Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Trustee and
delivered to the Guarantor.
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(c) The Trustee appointed to office shall hold office until
a Successor Trustee shall have been appointed or until its
removal or resignation. The Trustee may resign from office
(without need for prior or subsequent accounting) by an
instrument in writing executed by the Trustee and delivered to
the Guarantor, which resignation shall not take effect until a
Successor Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor
Trustee and delivered to the Guarantor and the resigning Trustee.
(d) If no Successor Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60
days after delivery to the Guarantor of an instrument of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for appointment of a Successor Trustee.
Such court may thereupon, after prescribing such notice, if any,
as it may deem proper, appoint a Successor Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore
paid by the Trust), as and when due, regardless of any defense,
right of set-off or counterclaim which the Guarantor may have or
assert against any person. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing
the Trust to pay such amounts to the Holders.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor
hereby waives notice of acceptance of this Guarantee Agreement
and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a
proceeding first against the Trust or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices
and demands.
SECTION 5.03. Obligations Not Affected. The obligation of
the Guarantor to make the Guarantee Payments under this Guarantee
Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Trust of any
express or implied agreement, covenant, term or condition
relating to the Preferred Securities to be performed or observed
by the Trust;
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(b) the extension of time for the payment by the Trust of
all or any portion of the Distributions, Redemption Price,
Liquidation Distribution or any other sums payable under the
terms of the Preferred Securities or the extension of time for
the performance of any other obligation under, arising out of, or
in connection with, the Preferred Securities (other than an
extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from
the extension of any interest payment period on the Junior
Subordinated Notes permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to
the terms of the Preferred Securities, or any action on the part
of the Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Trust or any of the assets of
the Trust;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.03 that the
obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice
to, or obtain consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be
deposited with the Trustee to be held for the benefit of the
Holders; (ii) the Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a
Majority in liquidation amount of the Preferred Securities have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee in respect of
this Guarantee Agreement or exercising any trust or power
conferred upon the Trustee under this Guarantee Agreement,
provided that such direction shall not be in conflict with any
rule of law or with this Guarantee Agreement, and could not
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involve the Trustee in personal liability in circumstances where
reasonable indemnity would not be adequate; and (iv) if the
Trustee fails to enforce this Guarantee Agreement as above
provided, any Holder may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against
the Trustee or any other person or entity; it being understood
and intended that no one or more of such Holders shall have any
right in any manner whatsoever by virtue of, or by availing of,
any provision of this Guarantee Agreement to affect, disturb or
prejudice the rights of any other of such Holders or to obtain or
to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Guarantee Agreement,
except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 5.05. Guarantee of Payment. This Guarantee
Agreement creates a guarantee of payment and not of collection.
This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication).
SECTION 5.06. Subrogation. The Guarantor shall be
subrogated to all (if any) rights of the Holders against the
Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that
the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise
any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a
result of payment under this Guarantee Agreement, if, at the time
of any such payment, any amounts of Guarantee Payments are due
and unpaid under this Guarantee Agreement. If any amount shall
be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders
and to pay over such amount to the Holders.
SECTION 5.07. Independent Obligations. The Guarantor
acknowledges that its obligations hereunder are independent of
the obligations of the Trust with respect to the Preferred
Securities and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to
the terms of this Guarantee Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through
(g), inclusive, of Section 5.03 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.01. Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank
(i) subordinate and junior in right of payment to all other
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liabilities of the Guarantor, including the Junior Subordinated
Notes, except those obligations or liabilities made pari passu or
subordinate by their terms, (ii) pari passu with the most senior
preferred or preference stock now or hereafter issued by the
Guarantor and with any guarantee now or hereafter entered into by
the Guarantor in respect of any preferred or preference
securities of any Affiliate of the Guarantor, and (iii) senior to
all common stock of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Guarantee Agreement shall
terminate and be of no further force and effect upon: (i) full
payment of the Redemption Price of all Preferred Securities, (ii)
the distribution of Junior Subordinated Notes to the Holders in
exchange for all of the Preferred Securities, or (iii) upon full
payment of the amounts payable in accordance with the Trust
Agreement upon liquidation of the Trust. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective
or will be reinstated, as the case may be, if at any time any
Holder must restore payment of any sums paid with respect to
Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the
successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders then
outstanding. Except in connection with a consolidation, merger,
conveyance, transfer, or lease involving the Guarantor that is
permitted under Article Eight of the Indenture, the Guarantor
shall not assign its obligations hereunder.
SECTION 8.02. Amendments. Except with respect to any
changes which do not materially and adversely affect the rights
of Holders (in which case no consent of Holders will be
required), this Guarantee Agreement may only be amended with the
prior approval of the Holders of not less than 66-2/3% in
liquidation amount of all the outstanding Preferred Securities.
The provisions of Article Six of the Trust Agreement concerning
meetings of Holders shall apply to the giving of such approval.
SECTION 8.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be in writing, duly signed by the party giving such notice, and
delivered, telecopied or mailed by first class mail as follows:
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(a) if given to the Guarantor, to the address set forth
below or such other address as the Guarantor may give notice of
to the Trustee and the Holders:
Alabama Power Company
600 North 18th Street
Birmingham, Alabama 35291
Attn: Corporate Secretary
with copy to:
Southern Company Services, Inc.
64 Perimeter Center East
Atlanta, Georgia 30346
Facsimile No.: (770) 821-4460
Attention: Corporate Finance Department
(b) if given to the Trust, in care of the Trustee, or to
the Trustee at the Trust's (and the Trustee's) address set forth
below or such other address as the Trustee on behalf of the
Trust may give notice to the Holders:
Alabama Power Capital Trust I
c/o Chemical Bank
450 W. 33rd Street
New York, New York 10001
Attn: Corporate Trustee Administration Department
(c) if given to any Holder, at the address set forth on the
books and records of the Trust.
All notices hereunder shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 8.04. Benefit. This Guarantee Agreement is solely
for the benefit of the Holders and, subject to Section 3.01(a),
is not separately transferable from the Preferred Securities.
SECTION 8.05. Interpretation. In this Guarantee Agreement,
unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but
not defined in the preamble hereto have the respective meanings
assigned to them in Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has
the same meaning throughout;
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(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles
and Sections are to Articles and Sections of this Guarantee
Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise
defined in this Guarantee Agreement or unless the context
otherwise requires;
(f) a reference to the singular includes the plural and
vice versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 8.06. Governing Law. THIS GUARANTEE AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. THE GUARANTOR HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY
COURT IN THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF
NEW YORK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND
RELATED TO OR IN CONNECTION WITH THIS GUARANTEE AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED THEREBY, AND TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE GUARANTOR HEREBY WAIVES AND AGREES NOT TO
ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH
SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION
OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE
OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS
GUARANTEE AGREEMENT OR ANY DOCUMENT OR ANY INSTRUMENT REFERRED TO
HEREIN OR THE SUBJECT MATTER HEREOF MAY NOT BE LITIGATED IN OR BY
SUCH COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
GUARANTOR AGREES NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY
REVIEW OF THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY
OTHER NATION OR JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN
ENFORCEMENT OF SUCH JUDGMENT. THE GUARANTOR AGREES THAT SERVICE
OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO
THE ADDRESS FOR NOTICES SET FORTH IN THIS GUARANTEE AGREEMENT OR
ANY METHOD AUTHORIZED BY THE LAWS OF NEW YORK.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
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ALABAMA POWER COMPANY
By:
Name: Art P. Beattie
Title: Vice President, Secretary and
Treasurer
CHEMICAL BANK
By:
Name:
Title:
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Exhibit H
Balch & Bingham
Birmingham, Alabama
205-251-8100
February 8, 1996
Securities and Exchange Commission
Washington, DC 20549
RE: Statement on Form U-1
of Alabama Power Company
(herein called the "Company") et al.
File No. 70-8461
Ladies and Gentlemen:
We have read the statement on Form U-1, as amended, referred to above and are
furnishing this opinion with respect to the issuance and sale by Alabama Power
Capital Trust I (the "Trust") of its Trust Preferred Securities and the related
issuance by the Company of its Guarantee and Junior Subordinated Notes (all as
defined therein).
We are of the opinion that:
(a) the Company is validly organized and duly existing as a corporation
under the laws of the State of Alabama;
(b) the Trust has been duly formed and is validly existing as a business
trust under the laws of the State of Delaware;
(c) the transactions have been consummated in accordance with such
statement on Form U-1, as amended;
(d) all state laws applicable to such transactions have been complied with;
(e) the Company's obligations with respect to the Guarantee and the Junior
Subordinated Notes are valid and binding obligations of the Company in
accordance with their terms;
<PAGE>
Securities and Exchange Commission
February 8, 1995
Page 2
(f) the Trust's obligations with respect to the Trust Preferred Securities
are valid and binding obligations of Alabama Power Capital in
accordance with their terms; and
(g) the consummation of the transactions did not violate the legal rights
of the holders of any securities issued by the Company, the Trust, or
any associate company thereof.
We hereby give our written consent to the use of this opinion in connection with
the above-mentioned statement on Form U-1 and to the filing thereof with the
commission at the time of the filing of the certificate pursuant to Rule 24.
Very truly yours,
/s/Balch & Bingham
